Public Domain Pen Documents Now Online

[D Armstrong]

It is always nice when someone decides to share. And when the thing shared is pen information, it is beyond nice: it’s a public service.

We were browsing through our favourite host of online information, the Internet Archive (http://archive.org) and came across the fruits of some generous soul’s labour: high quality scans of vintage fountain pen & pencil documents. Catalogues and service manuals for some of the biggest names in the pen business. These are all public domain items, some in full colour, and represent a very valuable collection.

The importance of this information cannot be understated. We can often pinpoint the age of a pen by it’s appearance in a catalogue. Or, we may be able to determine exactly which pen would have gone with which desk base. We have discovered the exact length of the neck ribbons originally supplied by Waterman. The list goes on, and that’s just the catalogues!

The real treasure is in the service manuals. Detailed breakdowns of pens. Step-by-step instructions as to repair methods. Illustrations of tools designed & provided by the manufacturers. This information is a lifeline for old pens.

So our thanks goes out to the kind soul who, rather than hoarding this information—or choosing to profit by selling it—chose to enrich us all.

The documents are posted to archive.org in groupings, which are not chronological and are named a bit oddly. We have decided to list them a little more intuitively on our website, making it much easier to locate what you are specifically looking for: http://www.restorersart.com/?p=1245

[D Armstrong]

It has come to our attention that some of the documents listed above may have come from the online library of the Pen Collectors of America (https://pencollectorsofamerica.com), and that their free availability may be damaging to that organization. I have included an end-note addressing this on our site.

[jacksterp]

Very nice post that I'm sure will help many people.

[KBeezie]

It has come to our attention that some of the documents listed above may have come from the online library of the Pen Collectors of America (https://pencollectorsofamerica.com), and that their free availability may be damaging to that organization. I have included an end-note addressing this on our site.

I think that depends on whether or not the scans actually came from their site, or if someone else made scans themselves. If it's merely that it's the same content, personally I wouldn't worry as much about it (because documents and artwork and such as old as they are, are legally public domain, well tricky anyways).

Is the scans the only thing PCA is good for?

[Vintagepens]

As far as I can tell, every single one of the scans was taken without permission from the PCA's Reference Library.

To clarify, while a given book or document may be in the public domain (which is to say, it either was not copyrighted, or its copyright has expired), when someone digitizes that book or document, the resulting files are NOT automatically in the public domain. Companies such as Ancestry.com, for example, digitize huge quantities of public records. Access to the original records themselves is free, but the digital versions are another matter. One pays for the convenience, and for all the work involved. If Ancestry.com couldn't charge, they couldn't provide the service. It's that simple.

Compared to services such as Ancestry.com, access to the PCA Reference Library is dirt cheap. The PCA is nonprofit, and anyone can join. And joining helps ensure that there is a central repository preserving pen reference material. The work of scanning new material and upgrading the old is ongoing, with a staggering amount of work still to be done. Yes, many institutions have put scanned material up on Google Books or the Internet Archive. In many of those cases, however, the expense of digitization was covered by outside grants. The PCA has not been so lucky, and so has had to rely upon its own resources, including a host of member volunteers. So please, if you think digitization of rare pen reference material is a good thing, support the organization that is putting the effort into actually doing it.

David

[Robert]

Is the scans the only thing PCA is good for?

Not at all. Here's a link to PCA's site: https://www.pencollectorsofamerica.com

Their magazine is really nicely done - - very attractive and informative.

[KBeezie]

As far as I can tell, every single one of the scans was taken without permission from the PCA's Reference Library.

To clarify, while a given book or document may be in the public domain (which is to say, it either was not copyrighted, or its copyright has expired), when someone digitizes that book or document, the resulting files are NOT automatically in the public domain. Companies such as Ancestry.com, for example, digitize huge quantities of public records. Access to the original records themselves is free, but the digital versions are another matter. One pays for the convenience, and for all the work involved. If Ancestry.com couldn't charge, they couldn't provide the service. It's that simple.

Compared to services such as Ancestry.com, access to the PCA Reference Library is dirt cheap. The PCA is nonprofit, and anyone can join. And joining helps ensure that there is a central repository preserving pen reference material. The work of scanning new material and upgrading the old is ongoing, with a staggering amount of work still to be done. Yes, many institutions have put scanned material up on Google Books or the Internet Archive. In many of those cases, however, the expense of digitization was covered by outside grants. The PCA has not been so lucky, and so has had to rely upon its own resources, including a host of member volunteers. So please, if you think digitization of rare pen reference material is a good thing, support the organization that is putting the effort into actually doing it.

David

If they obtained the scans from PCA, then that indeed changes things (ie: not in favor of Archive). If they instead scanned it themselves (or was provided the scans with permission), then there's nothing really to debate.

I'm all for the share of various mediums, especially historical documents, provided they're not obtained by illicit means (I'm not a member of PCA, but I imagine that part of the agreement when you become a member is that you will not share the resources and digital mediums to non-members). For my own purposes if I want to show off something, or use something for informational purposes, I will try to get a physical copy of it myself and scan it myself, or obtain permission from someone who has it. (As a photographer I feel the same way when it comes to photographs of pens etc).




Is the scans the only thing PCA is good for?

Not at all. Here's a link to PCA's site: https://www.pencollectorsofamerica.com

Their magazine is really nicely done - - very attractive and informative.


My question was mainly to bring scrutiny to the claim that such availability of the scans would be "damaging" to the association. Which I wouldn't feel too bad about, however if the images were obtained *from* PCA without permission, then my stance would change.

[Vintagepens]

I don't see it so much in terms of "damaging", either.
If the scans just happened to cover the same material as the scans in the PCA library, no big deal.

But this appears to be all about the PCA's scans being publicly posted for distribution without permission or even credit -- definitely not cool.

[kirchh]

I think it's worth underlining the key points that David Armstrong made in his first post (even though, initially, he was unaware of the deserving recipient of his praises) -- that these PCA Library materials were contributed, scanned, and organized by kind and generous souls who did not make a profit on their materials or their labors. Furthermore, they represent a very valuable collection, and the importance of the information cannot be overstated. In addition to the catalogs, which contain such nuggets as the original length of the Waterman ribbons, there is the trove of repair manuals, which represent a lifeline for old pens. Clearly, they represent far more than merely being "a few files," as Mr. Armstrong demonstrates when he explains his delight in discovering an obscure fact in one of the Waterman catalogs -- he just hadn't realized that all this information was already available to any PCA member.

And David bestowed this lavish -- and deserved -- praise on only a fraction of the materials that the PCA Library contains, which is high praise indeed for the value of the totality of the PCA Library's holdings. As someone recently observed, the library has hundreds of pen catalogs, pamphlets, brochures and other materials available online, and "if someone wonders what model is his 1920's black Parker pen, besides asking online at boards, he can search original company catalogues via the PCA. Access to the Library is gold. . . . If one wishes to learn a ton and to support the hobby, [joining the PCA] is a good way to do it."

Other issues aside, PCA members should be grateful for Mr. Armstrong's compliments to the PCA's contributors, volunteers, and important holdings, and for drawing attention to the value of a PCA membership.

--Daniel

[HughC]

This has had a fairly decent "working over" on the FPB with some strong emotions shown and a bit feisty at times.

There are two issues, on legal and the other ethical. Firstly the documents are in the public domain and digitizing them doesn't alter that fact which means the PCA has no rights to them as such nor any control over there use. They have a right to sell copies, a right to have them in a members only area and I think a right to mark the digital copies as from the PCA. If a copyright did exist it would most likely be owned by the pen companies. Given these are mostly advertising material then the pen companies (if still going) would probably view any material that raised brand awareness as good. The ethics is a different matter, reasons include the collecting of the material, the scanning, the source (ie provided to the PCA by the owner of the original etc), the pride of having a collection like that in one place and the feeling of being betrayed by those that put the "hard yards in". People can make up their own mind (legal v ethical) but the reality of the digital era makes any form of control difficult even when it occurs illegally ( look at music and torrents ). BTW I prefer the ethical viewpoint, so much that I joined the PCA.

Modern catalogs would most likely be subject to copyright, it could be the company if "in house" or possibly the photographer if done out of house. Considering the purpose of the material was to advertise and provided free there is little reason for anyone/business/company to exercise it's copyright as it could be seen as beneficial in raising brand awareness, so for all practical purposes they can be copied and distributed ( it's hard to argue a financial reason when the product was free and copyright is about money in the wash up).

Regards
Hugh

Disclaimer: This is a personal opinion.

[D Armstrong]

Modern catalogs would most likely be subject to copyright, it could be the company if "in house" or possibly the photographer if done out of house.

Modern catalogs are definitely under copyright. In fact, since March 1, 1989, in the US, all printed documents are copyrighted, whether there is a notice or not. The instant an expression is put into "fixed" form, it is covered by copyright. (cf Hirtle: Copyright Term and the Public Domain in the United States, https://copyright.cornell.edu/resources/publicdomain.cfm.)

In the case of someone hired to provide content (such as a photographer or copywriter), they are considered to have transferred their copyrights to the hiring party (unless there is specific provision in their contract otherwise, which there usually isn't.)

It's interesting to see someone recognize the difference in thinking between advertisers today, and those of a hundred years ago. Today, no one would dream of "giving away" any sort of rights to anything. But back then, copyright notice was rarely, if ever, put on advertising copy. It's not that they were unaware of the issue, or the requirements (after all, lawyers transcend time.) But, as High pointed out, I suspect they would have thought it insane to limit the use or distribution of their advertising. I can just imagine it: "They want to make extra copies and give them away? By all means! In fact, we'd have paid them to do it, the rubes..."

[david i]

As far as I can tell, every single one of the scans was taken without permission from the PCA's Reference Library.

To clarify, while a given book or document may be in the public domain (which is to say, it either was not copyrighted, or its copyright has expired), when someone digitizes that book or document, the resulting files are NOT automatically in the public domain. Companies such as Ancestry.com, for example, digitize huge quantities of public records. Access to the original records themselves is free, but the digital versions are another matter. One pays for the convenience, and for all the work involved. If Ancestry.com couldn't charge, they couldn't provide the service. It's that simple.

Compared to services such as Ancestry.com, access to the PCA Reference Library is dirt cheap. The PCA is nonprofit, and anyone can join. And joining helps ensure that there is a central repository preserving pen reference material. The work of scanning new material and upgrading the old is ongoing, with a staggering amount of work still to be done. Yes, many institutions have put scanned material up on Google Books or the Internet Archive. In many of those cases, however, the expense of digitization was covered by outside grants. The PCA has not been so lucky, and so has had to rely upon its own resources, including a host of member volunteers. So please, if you think digitization of rare pen reference material is a good thing, support the organization that is putting the effort into actually doing it.

David

One of the interesting notions illuminated by this discussion over at Fountain Pen Board (link to follow), is that no one has right to assert copyright over public domain documents. I do apologize on behalf of the PCA for some of the paranoid-ish rants offered by a PCA person aimed against beloved hobby author Paul Erano in the five page thread to follow, but the discussion of copyrights on old pen catalogues really is fascinating.


http://fountainpenboard.com/forum/index.php?/topic/6174-public-domain-pen-documents-now-online/

regards

david

[dneal]

D. Armstrong - Thanks for sharing the link.

As for the rest of the drama... I can only shake my head. 6 pages and I think I finally got the gist of it:

Altruism is good when you're the recipient, but altruism is bad when it has the potential to impact profit for selling things received from altruism.

[david i]

D. Armstrong - Thanks for sharing the link.

As for the rest of the drama... I can only shake my head. 6 pages and I think I finally got the gist of it:

Altruism is good when you're the recipient, but altruism is bad when it has the potential to impact profit for selling things received from altruism.

Philosophers can go at it for centuries, with textbooks filtering "it" down to a sentence centuries later. Six pages not so bad ;)

-d

[kirchh]

D. Armstrong - Thanks for sharing the link.

As for the rest of the drama... I can only shake my head. 6 pages and I think I finally got the gist of it:

Altruism is good when you're the recipient, but altruism is bad when it has the potential to impact profit for selling things received from altruism.

No, that's not the gist of it. You've missed the central point, actually.

Altruism can be good when you decide to give away something you put time, money, and effort into creating. But purported altruism can be bad when you decide to give away -- without permission, or even acknowledgement -- something someone else put time, money, and effort into creating.

--Daniel

[david i]

Note that while there is room always to discuss nuances regarding various courtesies, readers should not be misled to believe that "time, money, effort" convey any actual legal right to public domain material. Indeed, some of those who have tried to legally assert such rights have been found guilty of copyfraud. There is of course nothing wrong with offering easy access to public domain material while charging a fee for that easy access. But, some land on quicksand by embracing the belief that they have the right to exclude others from offering similar. The copying of public domain material does not offer one exclusive rights to offer said copies, even if one made the copies.

I invite exploration of the subject at a healthy 6 page thread on the subject at Fountain Pen Board http://www.fountainpenboard.com/forum/index.php?/topic/6174-public-domain-pen-documents-now-online/

As an aside, if rumor is correct, the Fountain Pen Journal can welcome a Canadian pen collector to the ranks of pending contributors of articles. No doubt a good thing.

regards

David

[dneal]

D. Armstrong - Thanks for sharing the link.

As for the rest of the drama... I can only shake my head. 6 pages and I think I finally got the gist of it:

Altruism is good when you're the recipient, but altruism is bad when it has the potential to impact profit for selling things received from altruism.

No, that's not the gist of it. You've missed the central point, actually.

Altruism can be good when you decide to give away something you put time, money, and effort into creating. But purported altruism can be bad when you decide to give away -- without permission, or even acknowledgement -- something someone else put time, money, and effort into creating.

--Daniel

Wouldn't it be worse to profit off of something that someone else (i.e.: the manufacturer) truly put time, money and effort in creating? Oh, that's when "public domain" is the key point and perfectly acceptable justification.

[kirchh]

D. Armstrong - Thanks for sharing the link.

As for the rest of the drama... I can only shake my head. 6 pages and I think I finally got the gist of it:

Altruism is good when you're the recipient, but altruism is bad when it has the potential to impact profit for selling things received from altruism.

No, that's not the gist of it. You've missed the central point, actually.

Altruism can be good when you decide to give away something you put time, money, and effort into creating. But purported altruism can be bad when you decide to give away -- without permission, or even acknowledgement -- something someone else put time, money, and effort into creating.

--Daniel

Wouldn't it be worse to profit off of something that someone else (i.e.: the manufacturer) truly put time, money and effort in creating? Oh, that's when "public domain" is the key point and perfectly acceptable justification.

Excellent question. The answer is no. The reason is very simple. The manufacturer received exactly the benefit they anticipated when they created the material (assuming arguendo it was copyrighted).

--Daniel

[dneal]

I'd be interested to see the ethical theory that justifies those two disparate viewpoints.

Nobody (except the public) owned the documents. The outrage is ridiculous, and sounds like sour grapes because it is more difficult to profit from something that didn't belong to anyone in the first place.

[kirchh]

I think a clarification will be useful here. There has been a conflation or blurring between rights conferred to the creator or owner of a work under copyright law, and rights that exist with regard to ownership (as in legal possession). These are distinct. A person or entity may lack protection under copyright law (by not owning the copyright to a work), but they may have rights due to the fact that they possess the work, or a copy thereof.

If I purchase an old, out of copyright catalog, I don't acquire a copyright on the contents of the catalog. If I make a photocopy of the catalog, I don't acquire the copyright on the photocopy. However, no one has the right to reproduce my photocopy without my permission, because they would need my permission to possess the photocopy in order to reproduce it. This is not due to any copyright ownership. No one can assert that because the photocopy is not protected by copyright, I must permit anyone who requests it to borrow it so that they can copy it, and certainly no one can assert that I must distribute or otherwise make available my photocopy to the public because it's not copyrightable. Therefore, I control my reproduction through possession, not via copyright. I can grant someone permission to make a copy under a set of terms that I craft, which may include restrictions on any further dissemination; a potential acquirer of such a copy is free to accept or to reject these conditions for receiving access to the copy. All of the preceding applies to a digital copy as well as to a paper photocopy.

So, the copying of public domain material does confer exclusive rights to offer those copies (though not because of the acquisition of a copyright on the copies), until that right is surrendered explicitly or implicitly (by failing to attach terms when distributing copies of the material).

There may be a misapprehension that it is legally impermissible to make copies of public-domain materials and then not to make those copies freely available to any member of the public, because the copier does not acquire a copyright on the copies. That's simply incorrect. There may also be an opinion among some that it is unethical to make copies of public-domain materials and then not to make those copies freely available to any member of the public, because the copier does not acquire a copyright on the copies. I don't hold that opinion.

--Daniel

[kirchh]

I'd be interested to see the ethical theory that justifies those two disparate viewpoints.

Nobody (except the public) owned the documents. The outrage is ridiculous, and sounds like sour grapes because it is more difficult to profit from something that didn't belong to anyone in the first place.

I disagree with the embedded premise. They are one viewpoint, not two disparate viewpoints.

See my post that explains the difference between ownership of copyright on a work and the creation and ownership of an instance of a copy of a public-domain work.

Under copyright law, the contents and appearance of a public-domain work do not belong to anyone, by definition, but a particular copy of such a work belongs initially to the creator of the copy. Reward for acquiring materials and reproducing them can be obtained through the existence of an incentive -- financial or otherwise -- that can be constructed using contracts, though not via the assertion of copyright. The establishment of such an agreement-based reward mechanism which produces an incentive can thus result in the availability of otherwise difficult-to-obtain materials.

--Daniel

[dneal]

Thanks for all that. To continue the analogy: It looks like you lost possession of your photocopy, saw a copy that just looks like it and are claiming it's yours. Maybe you should have marked it in a way that you could prove ownership.

Now that the legal silliness is out of the way, I'm looking at the ethical problem. PCA didn't create or own the documents, but had no problem selling them via a membership mandatory to viewing. I understand the usefulness in funding the organization, but if you want to get down to brass tacks... it wasn't the most ethical thing to be doing in the first place. Get past that objection and maybe I would care about what happened thereafter.

[kirchh]

Thanks for all that. To continue the analogy: It looks like you lost possession of your photocopy, saw a copy that just looks like it and are claiming it's yours. Maybe you should have marked it in a way that you could prove ownership.

First, let's correct a stark error in your recitation of the events: the documents posted to archive.org are the ones in the PCA library. I don't want there to be any further confusion on this point that could provide an opportunity for some specious claim that the archive.org documents are different scans of the source documents. It is trivial to determine that the documents are the same.

I agree that the PCA should have marked the documents to make this determination easier, but the fact stands that they are the same documents.

The PCA should also have anticipated that their incentive/reward mechanism was incomplete without an attached set of terms on the distribution of their copies; they have now rectified that.


Now that the legal silliness is out of the way, I'm looking at the ethical problem. PCA didn't create or own the documents, but had no problem selling them via a membership mandatory to viewing. I understand the usefulness in funding the organization, but if you want to get down to brass tacks... it wasn't the most ethical thing to be doing in the first place. Get past that objection and maybe I would care about what happened thereafter.

You continue to be confused about the distinction between the ownership of the copyright on a work and the ownership of a particular reproduction of a public-domain work. There is no ethical issue with freely deciding to undertake the reproduction, classification, storage and distribution of a public-domain work because of a particular reward that would ensue (notwithstanding that the PCA had a flaw in their implementation of this process). You haven't pointed out anything that the PCA did, or tried to do, that was unethical. Do you believe that any person or organization that possesses a public-domain work is under an ethical obligation to distribute copies of that work for free to the public?

--Daniel

[david i]

I note that no evidence has been offered that a legal right of any sort exists to limit distribution of digital copies of public domain works, no matter who made said digital copy. I note that evidence has been presented at Fountain Pen Board that those who make digital copies of public domain works in fact have no legal right to limit distribution of said copies by... anyone. I note that those who engage in legal maneuvers to prevent dissemination of digital copies of public domain material put themselves at risk of committing copyfraud, a potentially actionable offense.

Attempts legally to control one's digital reproduction of public domain works appear to be nonsense.

I am inclined to test the theory on a large scale.

regards

david

[david i]

Thanks for all that. To continue the analogy: It looks like you lost possession of your photocopy, saw a copy that just looks like it and are claiming it's yours. Maybe you should have marked it in a way that you could prove ownership.

Now that the legal silliness is out of the way, I'm looking at the ethical problem. PCA didn't create or own the documents, but had no problem selling them via a membership mandatory to viewing. I understand the usefulness in funding the organization, but if you want to get down to brass tacks... it wasn't the most ethical thing to be doing in the first place. Get past that objection and maybe I would care about what happened thereafter.

Hi Dneal,

I don't see any ethical problem with PCA offering an easy-access portal to public domain works and charging a fee for the ease of access. I note merely that this appears to be a somewhat tenuous business model, given that we have learned-- thanks to the issues raised by Jon Veley at Fountain Pen Board-- that said material is free for anyone to use and given that offering such material at different websites or via other media is easy to do. Something about closing Pandora's box, putting the Djinn back in the bottle. Entropy can be a bitch.

regards

David

[dneal]

First, let's correct a stark error in your recitation of the events: the documents posted to archive.org are the ones in the PCA library. I don't want there to be any further confusion on this point that could provide an opportunity for some specious claim that the archive.org documents are different scans of the source documents. It is trivial to determine that the documents are the same.

I agree that the PCA should have marked the documents to make this determination easier, but the fact stands that they are the same documents.

The PCA should also have anticipated that their incentive/reward mechanism was incomplete without an attached set of terms on the distribution of their copies; they have now rectified that.


Now that the legal silliness is out of the way, I'm looking at the ethical problem. PCA didn't create or own the documents, but had no problem selling them via a membership mandatory to viewing. I understand the usefulness in funding the organization, but if you want to get down to brass tacks... it wasn't the most ethical thing to be doing in the first place. Get past that objection and maybe I would care about what happened thereafter.

You continue to be confused about the distinction between the ownership of the copyright on a work and the ownership of a particular reproduction of a public-domain work. There is no ethical issue with freely deciding to undertake the reproduction, classification, storage and distribution of a public-domain work because of a particular reward that would ensue (notwithstanding that the PCA had a flaw in their implementation of this process). You haven't pointed out anything that the PCA did, or tried to do, that was unethical. Do you believe that any person or organization that possesses a public-domain work is under an ethical obligation to distribute copies of that work for free to the public?

--Daniel

Oh, I'm not confused at all about the issue. Your presentation of it is quite confusing. You also seem to be unable to separate the notions of legal and ethical. I'm addressing the latter. We can talk ethics, and feel free to pick your philosophy/philosopher/school of thought. Bentham and utilitarianism? James and Pragmatism? Kant and the categorical imperative?

[dneal]

Thanks for all that. To continue the analogy: It looks like you lost possession of your photocopy, saw a copy that just looks like it and are claiming it's yours. Maybe you should have marked it in a way that you could prove ownership.

Now that the legal silliness is out of the way, I'm looking at the ethical problem. PCA didn't create or own the documents, but had no problem selling them via a membership mandatory to viewing. I understand the usefulness in funding the organization, but if you want to get down to brass tacks... it wasn't the most ethical thing to be doing in the first place. Get past that objection and maybe I would care about what happened thereafter.

Hi Dneal,

I don't see any ethical problem with PCA offering an easy-access portal to public domain works and charging a fee for the ease of access. I note merely that this appears to be a somewhat tenuous business model, given that we have learned-- thanks to the issues raised by Jon Veley at Fountain Pen Board-- that said material is free for anyone to use and given that offering such material at different websites or via other media is easy to do. Something about closing Pandora's box, putting the Djinn back in the bottle. Entropy can be a bitch.

regards

David

Honestly, I don't have a problem with PCA offering the documents either. I do recognize that once they attempt to assume the high moral ground, that their position (strictly speaking) is shaky.

[kirchh]

First, let's correct a stark error in your recitation of the events: the documents posted to archive.org are the ones in the PCA library. I don't want there to be any further confusion on this point that could provide an opportunity for some specious claim that the archive.org documents are different scans of the source documents. It is trivial to determine that the documents are the same.

I agree that the PCA should have marked the documents to make this determination easier, but the fact stands that they are the same documents.

The PCA should also have anticipated that their incentive/reward mechanism was incomplete without an attached set of terms on the distribution of their copies; they have now rectified that.


Now that the legal silliness is out of the way, I'm looking at the ethical problem. PCA didn't create or own the documents, but had no problem selling them via a membership mandatory to viewing. I understand the usefulness in funding the organization, but if you want to get down to brass tacks... it wasn't the most ethical thing to be doing in the first place. Get past that objection and maybe I would care about what happened thereafter.

You continue to be confused about the distinction between the ownership of the copyright on a work and the ownership of a particular reproduction of a public-domain work. There is no ethical issue with freely deciding to undertake the reproduction, classification, storage and distribution of a public-domain work because of a particular reward that would ensue (notwithstanding that the PCA had a flaw in their implementation of this process). You haven't pointed out anything that the PCA did, or tried to do, that was unethical. Do you believe that any person or organization that possesses a public-domain work is under an ethical obligation to distribute copies of that work for free to the public?

--Daniel

Oh, I'm not confused at all about the issue. Your presentation of it is quite confusing. You also seem to be unable to separate the notions of legal and ethical. I'm addressing the latter. We can talk ethics, and feel free to pick your philosophy/philosopher/school of thought. Bentham and utilitarianism? James and Pragmatism? Kant and the categorical imperative?

Your confusion is evident in your statement, "PCA didn't create or own the documents, but had no problem selling them via a membership mandatory to viewing." The PCA did not create the original works, nor did they own the copyright to those works or to any copies of those works, but they did own the instances of the reproductions they acquired or created, and the PCA had discretion as to the terms under which they made those reproductions available. I hope that clears up the confusion.

You've made no specific ethical objection; merely asserting, "it wasn't the most ethical thing to be doing in the first place" is not a line of ethical reasoning. I posed a specific ethical question, which you failed to answer: Do you believe that any person or organization that possesses a public-domain work is under an ethical obligation to distribute copies of that work for free to the public? That's talking ethics, and the "school of thought" should be yours.

--Daniel
P.S. To clear up another error, there is no issue of "copyfraud" here, as the question under discussion does not revolve around a claim that the PCA holds the copyright to the materials in question, per the definition of that term provided by Wikipedia (http://en.wikipedia.org/wiki/Copyfraud).

[david i]

To emphasize:

I note that no evidence has been offered that a legal right of any sort exists to limit distribution of digital copies of public domain works, no matter who made said digital copy. I note that evidence has been presented at Fountain Pen Board that those who make digital copies of public domain works in fact have no legal right to limit distribution of said copies by... anyone. I note that those who engage in legal maneuvers to prevent dissemination of digital copies of public domain material put themselves at risk of committing copyfraud, a potentially actionable offense.

Attempts legally to control one's digital reproduction of public domain works appear to be nonsense.

I am inclined to test the theory on a large scale.

regards

david

[kirchh]

Nobody (except the public) owned the documents. The outrage is ridiculous, and sounds like sour grapes because it is more difficult to profit from something that didn't belong to anyone in the first place.

I want to emphasize the error here. Nobody -- including the public -- owned the copyright to the works. The reproductions were owned by the creator (or party who arranged for their creation, etc.).

If you photocopy a copy of a public-domain Parker catalog, do you believe that you do not own that photocopy (not the copyright, just the actual photocopy), and that furthermore you must provide any member of the public access to it for free?

--Daniel

[david i]

I cheerfully note that there are no digital rights owned by any creator of a digital copy of a public domain works. "Reproductions" in this context is an unfortunately ambiguous term. The creator of a photocopy of a public domain work has the right to the few pieces of paper in his hand, not because he has any rights to the image, but because he owns... the physical paper. One may not take another person's 8 sheets of paper without his permission. To do so would be to steal. However, no one owns a digital copy of a public domain work. Once it is accessed it may be legally distributed at will. Nothing has been stolen, as any current possessor of the digital information has no claim to it.

I note that while no one has an obligation to distribute a digital copy in his possession of a public domain work free or otherwise (what does "for free" mean?), no one-- including he who copied first the public domain work-- can prevent others from disseminating further copies.

fun stuff.

-d

[david i]

I was sent this by a fellow collector as an example of digital material in the public domain, free for distribution at will.


http://www.vacumania.com/penteech2/Grab_PDFs_pen_catalogues.jpg



regards

david

[dneal]

Nobody (except the public) owned the documents. The outrage is ridiculous, and sounds like sour grapes because it is more difficult to profit from something that didn't belong to anyone in the first place.

I want to emphasize the error here. Nobody -- including the public -- owned the copyright to the works. The reproductions were owned by the creator (or party who arranged for their creation, etc.).

If you photocopy a copy of a public-domain Parker catalog, do you believe that you do not own that photocopy (not the copyright, just the actual photocopy), and that furthermore you must provide any member of the public access to it for free?

--Daniel

David answered your question, but I'll make the issue simple:

PCA has a library of scanned catalogs that were printed by others.
PCA thinks they have control or ownership of these scans (this is the first debatable point).
Similar scans of these catalogs are also available at archive.org.
PCA thinks these documents are copies of their documents (debatable, but probable and I'll even concede that they did come from PCA for the sake of the argument).
PCA thinks it is illegal for these documents to have been uploaded to archive.org (I think this is a point you are making, but we can toss it out if you're not).
PCA thinks it is unethical for someone else to upload their documents for free distribution to archive.org (the second debatable point).
PCA thinks it will lose revenue because of these documents being on archive.org (debatable, but I'll concede this point as well).

For the first point, I do not agree. I sympathize. It runs down many avenues on where the "originals" that were scanned came from, but the bottom line is that the information is owned by the public and not PCA.
For the second debatable point, I again sympathize. I do not agree. Public information is made available to the public. There is nothing unethical about that. It can't have been stolen, because that implies that PCA had ownership. They didn't. PCA was selling convenience, not the information itself.

[Jon Szanto]

http://ncfp.files.wordpress.com/2011/03/forest_through_the_trees.jpg

[Laura N]

Well, this thread has been extremely useful. It reminded me just what a worthy organization the PCA is. What a shame more people don't support it.

Unfortunately, I was very busy and let my PCA membership slide this spring. Thanks to this thread, I've now renewed.

[HughC]

Let's go over it once more!!



If I purchase an old, out of copyright catalog, I don't acquire a copyright on the contents of the catalog. If I make a photocopy of the catalog, I don't acquire the copyright on the photocopy. However, no one has the right to reproduce my photocopy without my permission, because they would need my permission to possess the photocopy in order to reproduce it. This is not due to any copyright ownership. No one can assert that because the photocopy is not protected by copyright, I must permit anyone who requests it to borrow it so that they can copy it, and certainly no one can assert that I must distribute or otherwise make available my photocopy to the public because it's not copyrightable. Therefore, I control my reproduction through possession, not via copyright. I can grant someone permission to make a copy under a set of terms that I craft, which may include restrictions on any further dissemination; a potential acquirer of such a copy is free to accept or to reject these conditions for receiving access to the copy. All of the preceding applies to a digital copy as well as to a paper photocopy.
--Daniel

Nice argument Daniel but wrong. While physical ownership confers rights to the actual item it doesn't extend to the content of public domain documents so coping content that you have no rights to is not an issue, again in monetary terms you have not been affected unless the original sustains damage in the process. True you can try to control via ownership of original but you have no control over any copy that's made, again because you don't own the content. What you suggest amounts to trying to control public domain documents by asserting ownership of a document confers this right, which it doesn't.



The PCA should also have anticipated that their incentive/reward mechanism was incomplete without an attached set of terms on the distribution of their copies; they have now rectified that.
--Daniel

I just read all that on the PCA site, unfortunately means nothing except reinforcing the ethical issues. It is a good idea to mark where they came from but noting in the digital era this is easily removed.




PCA has a library of scanned catalogs that were printed by others.
PCA thinks they have control or ownership of these scans (this is the first debatable point).
Similar scans of these catalogs are also available at archive.org.
PCA thinks these documents are copies of their documents (debatable, but probable and I'll even concede that they did come from PCA for the sake of the argument).
PCA thinks it is illegal for these documents to have been uploaded to archive.org (I think this is a point you are making, but we can toss it out if you're not).
PCA thinks it is unethical for someone else to upload their documents for free distribution to archive.org (the second debatable point).
PCA thinks it will lose revenue because of these documents being on archive.org (debatable, but I'll concede this point as well).



Assembling a collection such as PCA has is a commendable and very worthwhile effort and does deserve due respect ( a key point). That PCA would like to exercise some control is certainly understandable due to the time and effort put in. Unfortunately not owning the content means they have no right to control it, they have the same right to copy it as everyone else has (key point) which is a point overlooked regardless of whether they had to pay for access to the original. I have no doubt it's unethical to simply take the documents and upload them somewhere else as it does not recognize the effort in obtaining and assembling this collection ( a key point). It should be recognized a number of people do feel (justifiably) hurt by this, this shouldn't be overlooked in judging the issues.

So the circle goes around again to legal v ethical. I, personally, think the ethical issues out weight the legal in the way I view it and I joined the PCA for that reason.

Regards
Hugh

[Jon Szanto]

Assembling a collection such as PCA has is a commendable and very worthwhile effort and does deserve due respect ( a key point). That PCA would like to exercise some control is certainly understandable due to the time and effort put in. Unfortunately not owning the content means they have no right to control it, they have the same right to copy it as everyone else has (key point) which is a point overlooked regardless of whether they had to pay for access to the original. I have no doubt it's unethical to simply take the documents and upload them somewhere else as it does not recognize the effort in obtaining and assembling this collection ( a key point). It should be recognized a number of people do feel (justifiably) hurt by this, this shouldn't be overlooked in judging the issues.

So the circle goes around again to legal v ethical. I, personally, think the ethical issues out weight the legal in the way I view it and I joined the PCA for that reason.

Hugh, I can't thank you enough for that. It was bothering me so much - the overlooking of important ethical issues in favor of all manner of microscopic inspection of legalistic details - that I had to shut off the computer and go over to the gym.

I beat myself up over there for almost two hours, and feel great, and felt better about coming back to the thread. Now, you've said all that needs to be said from my perspective. I just had a wonderful weekend amongst pen people up in San Francisco, where you can sense the community and good nature of the members and attenders. To read about someone simply ripping off the good will of an organization, over and above any of the mechanisms and protocols that caused those materials to be in place, just galls me no end. That people choose to focus on the other aspects, and not the harm to the good nature and spirit with which those materials were prepared by individuals who cared about pens and pen people, makes it worse.

I figured I was alone, but I value what you've written above, and that you've done so in a much less histrionic manner than I could have. Thank you.

[kirchh]

Nobody (except the public) owned the documents. The outrage is ridiculous, and sounds like sour grapes because it is more difficult to profit from something that didn't belong to anyone in the first place.

I want to emphasize the error here. Nobody -- including the public -- owned the copyright to the works. The reproductions were owned by the creator (or party who arranged for their creation, etc.).

If you photocopy a copy of a public-domain Parker catalog, do you believe that you do not own that photocopy (not the copyright, just the actual photocopy), and that furthermore you must provide any member of the public access to it for free?

--Daniel

David answered your question, but I'll make the issue simple:

PCA has a library of scanned catalogs that were printed by others.
PCA thinks they have control or ownership of these scans (this is the first debatable point).
Similar scans of these catalogs are also available at archive.org.
PCA thinks these documents are copies of their documents (debatable, but probable and I'll even concede that they did come from PCA for the sake of the argument).
PCA thinks it is illegal for these documents to have been uploaded to archive.org (I think this is a point you are making, but we can toss it out if you're not).
PCA thinks it is unethical for someone else to upload their documents for free distribution to archive.org (the second debatable point).
PCA thinks it will lose revenue because of these documents being on archive.org (debatable, but I'll concede this point as well).

For the first point, I do not agree. I sympathize. It runs down many avenues on where the "originals" that were scanned came from, but the bottom line is that the information is owned by the public and not PCA.
For the second debatable point, I again sympathize. I do not agree. Public information is made available to the public. There is nothing unethical about that. It can't have been stolen, because that implies that PCA had ownership. They didn't. PCA was selling convenience, not the information itself.

I'm not sure whether you addressed the questions I asked -- I can't quite tell what you are answering where, so I'd appreciate a clarification:

If you photocopy a copy of a public-domain Parker catalog, do you believe that you do not own that photocopy (not the copyright, just the actual photocopy)?

Do you believe that you must provide any member of the public access to your photocopy for free?

--Daniel

[david i]

I note that no evidence has been offered that a legal right of any sort exists to limit distribution of digital copies of public domain works, no matter who made said digital copy. I note that evidence has been presented at Fountain Pen Board that those who make digital copies of public domain works in fact have no legal right to limit distribution of said copies by... anyone. I note that those who engage in legal maneuvers to prevent dissemination of digital copies of public domain material put themselves at risk of committing copyfraud, a potentially actionable offense.

Attempts legally to control one's digital reproduction of public domain works appear to be nonsense.

I am inclined to test the theory on a large scale.

regards

david

[david i]

I cheerfully note that there are no digital rights owned by any creator of a digital copy of a public domain works. "Reproductions" in this context is an unfortunately ambiguous term. The creator of a photocopy of a public domain work has the right to the few pieces of paper in his hand, not because he has any rights to the image, but because he owns... the physical paper. One may not take another person's 8 sheets of paper without his permission. To do so would be to steal. However, no one owns a digital copy of a public domain work. Once it is accessed it may be legally distributed at will. Nothing has been stolen, as any current possessor of the digital information has no claim to it.

I note that while no one has an obligation to distribute a digital copy in his possession of a public domain work free or otherwise (what does "for free" mean?), no one-- including he who copied first the public domain work-- can prevent others from disseminating further copies.

fun stuff.

-d

[kirchh]

Let's go over it once more!!



Nice argument Daniel but wrong. While physical ownership confers rights to the actual item it doesn't extend to the content of public domain documents so coping content that you have no rights to is not an issue, again in monetary terms you have not been affected unless the original sustains damage in the process. True you can try to control via ownership of original but you have no control over any copy that's made, again because you don't own the content. What you suggest amounts to trying to control public domain documents by asserting ownership of a document confers this right, which it doesn't.

Incorrect. You are mixing up two distinct things. Ownership of a copy of a public domain work does not confer the right to control the work itself. When a work is in the public domain, it is the content that is in the public domain, not any particular instantiation. If I acquire an original pen catalog that is in the public domain, and I make a photocopy of that catalog, the photocopy is not in the public domain; it's mine, and I can tuck it in a drawer and never show it to anyone if I choose. I am controlling that instantiation of the public domain document, but I am not controlling the work itself -- I cannot exert, nor do I claim to exert, any control over the work itself; I cannot say, "I photocopied that catalog, so you cannot get or distribute your own copy of that catalog."

Therefore, you are wrong when you say that what I suggest amounts to trying to control public domain documents.




The PCA should also have anticipated that their incentive/reward mechanism was incomplete without an attached set of terms on the distribution of their copies; they have now rectified that.
--Daniel

I just read all that on the PCA site, unfortunately means nothing except reinforcing the ethical issues. It is a good idea to mark where they came from but noting in the digital era this is easily removed.

I'm not sure what you mean when you say the agreement on the PCA site means nothing. Are you offering a legal opinion that it represents a contract that is illegal?

Is it your opinion that the agreements between users and such companies as Ancestry.com, Newspapers.com, and NewspaperARCHIVE.com "mean nothing"?





PCA has a library of scanned catalogs that were printed by others.
PCA thinks they have control or ownership of these scans (this is the first debatable point).
Similar scans of these catalogs are also available at archive.org.
PCA thinks these documents are copies of their documents (debatable, but probable and I'll even concede that they did come from PCA for the sake of the argument).
PCA thinks it is illegal for these documents to have been uploaded to archive.org (I think this is a point you are making, but we can toss it out if you're not).
PCA thinks it is unethical for someone else to upload their documents for free distribution to archive.org (the second debatable point).
PCA thinks it will lose revenue because of these documents being on archive.org (debatable, but I'll concede this point as well).



Assembling a collection such as PCA has is a commendable and very worthwhile effort and does deserve due respect ( a key point). That PCA would like to exercise some control is certainly understandable due to the time and effort put in. Unfortunately not owning the content means they have no right to control it, they have the same right to copy it as everyone else has (key point) which is a point overlooked regardless of whether they had to pay for access to the original. I have no doubt it's unethical to simply take the documents and upload them somewhere else as it does not recognize the effort in obtaining and assembling this collection ( a key point). It should be recognized a number of people do feel (justifiably) hurt by this, this shouldn't be overlooked in judging the issues.

To be clear: Are you saying that a person or entity who makes a reproduction of a public-domain work has no right to impose conditions for viewing their reproduction, such as the setting of a fee?

--Daniel

[kirchh]

PCA has a library of scanned catalogs that were printed by others.
PCA thinks they have control or ownership of these scans (this is the first debatable point).

They do have control and ownership of the instances of the scans that they possess.


Similar scans of these catalogs are also available at archive.org.

Incorrect. I'm not sure why you continue to imply that the documents in question at archive.org are not the same ones as those in the PCA library.


PCA thinks these documents are copies of their documents (debatable, but probable and I'll even concede that they did come from PCA for the sake of the argument).

Incorrect. It is not debatable, and there is no actual debate. Even you have not claimed that they are not the same. I'm disappointed that you continue to take this position, but it's wrong.


PCA thinks it is illegal for these documents to have been uploaded to archive.org (I think this is a point you are making, but we can toss it out if you're not).

If you think this is a point I am making, you must have some statement of mine that made you think that. Please provide the statement of mine that made you think this is a point I am making. That will allow us to determine the basis of your belief.

--Daniel

[david i]

Back to core points. I cheerfully note that there are no digital rights owned by any creator of a digital copy of a public domain works. "Reproductions" in this context is an unfortunately ambiguous term. The creator of a photocopy of a public domain work has the right to the few pieces of paper in his hand, not because he has any rights to the image, but because he owns... the physical paper. One may not take another person's 8 sheets of paper without his permission. To do so would be to steal. However, no one owns a digital copy of a public domain work. Once it is accessed it may be legally distributed at will. Nothing has been stolen, as any current possessor of the digital information has no claim to it.

I note that while no one has an obligation to distribute a digital copy in his possession of a public domain work free or otherwise (what does "for free" mean?), no one-- including he who copied first the public domain work-- can prevent others from disseminating further copies.

fun stuff.

-d

[david i]

An interesting tangent. I have copies of original pen catalogues and such that did not come from the PCA.

regards

-d

[HughC]

Incorrect. You are mixing up two distinct things. Ownership of a copy of a public domain work does not confer the right to control the work itself. When a work is in the public domain, it is the content that is in the public domain, not any particular instantiation. If I acquire an original pen catalog that is in the public domain, and I make a photocopy of that catalog, the photocopy is not in the public domain; it's mine, and I can tuck it in a drawer and never show it to anyone if I choose. I am controlling that instantiation of the public domain document, but I am not controlling the work itself -- I cannot exert, nor do I claim to exert, any control over the work itself; I cannot say, "I photocopied that catalog, so you cannot get or distribute your own copy of that catalog."


I should have said "copy not in your possession" but I'm sure you understood what I meant. Of course you own the physical photocopy but not the content, you can do whatever you like with it but if you let someone else copy your copy then your control ends regardless of any restrictions you try to put in place because, as has been said so many times, you have no right over the content.


control[/I] my reproduction through possession, not via copyright. I can grant someone permission to make a copy under a set of terms that I craft, which may include restrictions on any further dissemination...
--Daniel



Therefore, you are wrong when you say that what I suggest amounts to trying to control public domain documents.

I'm only reading what you wrote.


I'm not sure what you mean when you say the agreement on the PCA site means nothing. Are you offering a legal opinion that it represents a contract that is illegal?

Is it your opinion that the agreements between users and such companies as Ancestry.com, Newspapers.com, and NewspaperARCHIVE.com "mean nothing"?


I think it has little real meaning for the reason they have no right to the content. If the content is public domain you can't actually "steal" it, if it's made available then it can be copied by "whoever" bearing in mind that person has already paid to access the information via membership. The terms and conditions then aim to impose control over public domain content, while clearly you would breach those by posting content from PCA elsewhere I would doubt the value of trying to enforce them. As I said in, practical terms, it means nothing. Likewise with the others, from a practical view the cost outweighs any possible chance of success. The music industry highlights the difficulties even when copyright exists, if I gave you a copy of a CD are they going to "chase" me? Even if it's on a torrent site with 1000's of illegal downloads...not much happens....at the moment anyway. This is the practical reality.


To be clear: Are you saying that a person or entity who makes a reproduction of a public-domain work has no right to impose conditions for viewing their reproduction, such as the setting of a fee?

--Daniel

No I'm not. PCA (or any entity) can charge for viewing (as it does through membership), could charge per download if it wanted to and could charge for a physical copy. What I'm saying is that once the public domain content moves off their site they no longer have any control over it or how it's used. While PCA term and conditions seek to limit the public domain content being copied I doubt it's of much real value.

Regards
Hugh

[david i]

Indeed, the PCA presumably could terminate a membership based on violating a user agreement. Anything stronger would not stand up to scrutiny. More charming of course is that all the PCA's public domain materials long ago were downloaded, I am told.

-d

[kirchh]

I should have said "copy not in your possession" but I'm sure you understood what I meant. Of course you own the physical photocopy but not the content, you can do whatever you like with it but if you let someone else copy your copy then your control ends regardless of any restrictions you try to put in place because, as has been said so many times, you have no right over the content.

You have no copyright rights over the content. That is, you couldn't raise a copyright infringement claim. But on what basis do you claim that you cannot enter into a valid agreement with someone to restrict their redistribution of a reproduction you made of a public-domain work? That is, do you have a specific legal citation that shows that the law will not recognize such agreements, and that they are void?



control[/I] my reproduction through possession, not via copyright. I can grant someone permission to make a copy under a set of terms that I craft, which may include restrictions on any further dissemination...
--Daniel



Therefore, you are wrong when you say that what I suggest amounts to trying to control public domain documents.

I'm only reading what you wrote.

No, you're misreading what I wrote. What I suggest amounts to trying to control instantiations of reproductions of public domain works, not the works themselves. I guess I have to repeat this: I am not suggesting that by entering into an agreement with a person who wishes to view a reproduction that I have made of a public domain work, I can therefore try to control the work itself. If a person agrees to view a reproduction that I have created of a catalog on condition that they do not disseminate it further, I am not preventing him or her from disseminating a copy of the catalog that they obtain from another source, or that he or she creates him/herself. I am not exerting control over the public domain work, any more than I would be by simply not showing anyone my copy at all.



I'm not sure what you mean when you say the agreement on the PCA site means nothing. Are you offering a legal opinion that it represents a contract that is illegal?

Is it your opinion that the agreements between users and such companies as Ancestry.com, Newspapers.com, and NewspaperARCHIVE.com "mean nothing"?


I think it has little real meaning for the reason they have no right to the content.

Again, you are confusing copyright with the right to propose agreements that have terms for viewing reproductions of a public-domain work.


If the content is public domain you can't actually "steal" it,

Again, you are confusing the violation of a copyright with the violation of the terms of a contract freely entered into. Now, you may also believe that terms of use such as those at the above-named sites are illegal, but you haven't provided any support for such a claim.


if it's made available then it can be copied by "whoever" bearing in mind that person has already paid to access the information via membership. The terms and conditions then aim to impose control over public domain content, while clearly you would breach those by posting content from PCA elsewhere I would doubt the value of trying to enforce them.

To be precise, the T's & C's impose control over a particular reproduction of public domain content, not over the content itself. Again, you offer a legal opinion about whether such redistribution terms are enforceable; what is the basis for that claim? I haven't seen a specific citation that definitively voids such terms, but I am always open to new information.


As I said in, practical terms, it means nothing. Likewise with the others, from a practical view the cost outweighs any possible chance of success. The music industry highlights the difficulties even when copyright exists, if I gave you a copy of a CD are they going to "chase" me? Even if it's on a torrent site with 1000's of illegal downloads...not much happens....at the moment anyway. This is the practical reality.

This is a completely different argument. You now seem to be saying not that the rights don't exist -- via copyright or contract -- but that it's hard to catch violators and expensive to litigate. But that's not the issue under discussion.



To be clear: Are you saying that a person or entity who makes a reproduction of a public-domain work has no right to impose conditions for viewing their reproduction, such as the setting of a fee?

--Daniel

No I'm not. PCA (or any entity) can charge for viewing (as it does through membership), could charge per download if it wanted to and could charge for a physical copy. What I'm saying is that once the public domain content moves off their site they no longer have any control over it or how it's used. While PCA term and conditions seek to limit the public domain content being copied I doubt it's of much real value.

Again, this gets back to your assertion that as a matter of law, one cannot impose via contract any restrictions on redistribution of reproductions of public-domain works. I haven't seen any citations that support this specific claim, but I would be interested to learn of some.

--Daniel

[david i]

Back to core points. I cheerfully note that there are no digital rights owned by any creator of a digital copy of a public domain works. "Reproductions" in this context is an unfortunately ambiguous term. The creator of a photocopy of a public domain work has the right to the few pieces of paper in his hand, not because he has any rights to the image, but because he owns... the physical paper. One may not take another person's 8 sheets of paper without his permission. To do so would be to steal. However, no one owns a digital copy of a public domain work. Once it is accessed it may be legally distributed at will. Nothing has been stolen, as any current possessor of the digital information has no claim to it.

I note that while no one has an obligation to distribute a digital copy in his possession of a public domain work free or otherwise (what does "for free" mean?), no one-- including he who copied first the public domain work-- can prevent others from disseminating further copies.

fun stuff.

-d

[dneal]

PCA thinks these documents are copies of their documents (debatable, but probable and I'll even concede that they did come from PCA for the sake of the argument).

Incorrect. It is not debatable, and there is no actual debate. Even you have not claimed that they are not the same. I'm disappointed that you continue to take this position, but it's wrong.


PCA thinks it is illegal for these documents to have been uploaded to archive.org (I think this is a point you are making, but we can toss it out if you're not).

If you think this is a point I am making, you must have some statement of mine that made you think that. Please provide the statement of mine that made you think this is a point I am making. That will allow us to determine the basis of your belief.

--Daniel

Clearly you are not able to discuss this rationally. Example? I offer a point that I clearly say I'm not positive on, and clearly say we can ignore the point if need be. I offer a point but am willing to concede it for the sake of argument. You fixate on said point(s) and want proof (ignoring the fact that it is not my burden to prove that the archive.org documents are PCA's). Amazing.

I'll tell you what. I'll make sure I print and re-scan any documents I might find on the internet so I'll know through my time and effort expended that they're mine.

[kirchh]

PCA thinks these documents are copies of their documents (debatable, but probable and I'll even concede that they did come from PCA for the sake of the argument).

Incorrect. It is not debatable, and there is no actual debate. Even you have not claimed that they are not the same. I'm disappointed that you continue to take this position, but it's wrong.


PCA thinks it is illegal for these documents to have been uploaded to archive.org (I think this is a point you are making, but we can toss it out if you're not).

If you think this is a point I am making, you must have some statement of mine that made you think that. Please provide the statement of mine that made you think this is a point I am making. That will allow us to determine the basis of your belief.

--Daniel

Clearly you are not able to discuss this rationally. Example? I offer a point that I clearly say I'm not positive on, and clearly say we can ignore the point if need be. I offer a point but am willing to concede it for the sake of argument. You fixate on said point(s) and want proof (ignoring the fact that it is not my burden to prove that the archive.org documents are PCA's). Amazing.

I'll tell you what. I'll make sure I print and re-scan any documents I might find on the internet so I'll know through my time and effort expended that they're mine.

That's a disappointing cop-out, but I can't compel you to defend your statements. Your assertions here are strange; I never requested proof that the archive.org documents are or are not the PCA's, as a simple examination of my post will show (thanks for quoting it so this examination is facilitated).

You think I made a very specific point, but you apparently refuse to show any statement of mine that supports this claim. At least that much has been made clear.

Do you think someone who possesses a copy of a public-domain work is ethically obligated to make reproductions of that work available to the public for free?

--Daniel

[HughC]

You have no copyright rights over the content. That is, you couldn't raise a copyright infringement claim. But on what basis do you claim that you cannot enter into a valid agreement with someone to restrict their redistribution of a reproduction you made of a public-domain work? That is, do you have a specific legal citation that shows that the law will not recognize such agreements, and that they are void?

Due to the public nature of the documents I doubt enforceability, there may be precedence, may not but I'm not going to bother looking. You can write as many conditions as you like but when broken what are going to do about it?


No, you're misreading what I wrote. What I suggest amounts to trying to control instantiations of reproductions of public domain works, not the works themselves. I guess I have to repeat this: I am not suggesting that by entering into an agreement with a person who wishes to view a reproduction that I have made of a public domain work, I can therefore try to control the work itself. If a person agrees to view a reproduction that I have created of a catalog on condition that they do not disseminate it further, I am not preventing him or her from disseminating a copy of the catalog that they obtain from another source, or that he or she creates him/herself. I am not exerting control over the public domain work, any more than I would be by simply not showing anyone my copy at all.

Hardly worth arguing over. To be able to set conditions and enforce them legally you would need to demonstrate an ownership of said item (being content) as well as a loss by the action. It's hard to argue you've been wronged if there's no loss and you don't "own" the content.


Again, you are confusing copyright with the right to propose agreements that have terms for viewing reproductions of a public-domain work.Again, you are confusing the violation of a copyright with the violation of the terms of a contract freely entered into. Now, you may also believe that terms of use such as those at the above-named sites are illegal, but you haven't provided any support for such a claim.

Not at all. What I'm saying if the T.& C. are broken they're basically unenforceable. I'm not saying they're illegal ( how you came up with that beats me) just useless.


This is a completely different argument. You now seem to be saying not that the rights don't exist -- via copyright or contract -- but that it's hard to catch violators and expensive to litigate. But that's not the issue under discussion.

Of course it's the issue !! For it be legal it has to be enforceable under whatever jurisdiction is involved. One needs to consider the costs before action versus the chance of success, in the PCA instance it's a no brainer that action would cost more than it gains with little chance of winning...hence the issue becomes a "non issue" effectively voiding any T.& Cs. That's the reality of it.


Again, this gets back to your assertion that as a matter of law, one cannot impose via contract any restrictions on redistribution of reproductions of public-domain works. I haven't seen any citations that support this specific claim, but I would be interested to learn of some.

Again it's enforceability. I've already addressed this earlier. There's probably not much point in looking at this further unless you have something specific to "toss" around.

Regards
Hugh

[dneal]

That's a disappointing cop-out, but I can't compel you to defend your statements. Your assertions here are strange; I never requested proof that the archive.org documents are or are not the PCA's, as a simple examination of my post will show (thanks for quoting it so this examination is facilitated).

You think I made a very specific point, but you apparently refuse to show any statement of mine that supports this claim. At least that much has been made clear.

Do you think someone who possesses a copy of a public-domain work is ethically obligated to make reproductions of that work available to the public for free?

--Daniel

My assertions are quite rational. Your reading comprehension is what appears to be lacking, or you are being disingenuous or manipulative with your interpretations.

(Example 1.) I said:


PCA thinks these documents are copies of their documents (debatable, but probable and I'll even concede that they did come from PCA for the sake of the argument).

I am not asserting that they did or didn't originate at PCA. I'm addressing the question.

You said:


Incorrect. It is not debatable, and there is no actual debate. Even you have not claimed that they are not the same. I'm disappointed that you continue to take this position, but it's wrong.

You are asserting that they did originate at PCA. I do not have to provide a quote of you phrasing it in that manner. By eliminating the questionability, you are making an assertion and the burden of proof falls on you.

(Example 2.) I said:


PCA thinks it is illegal for these documents to have been uploaded to archive.org (I think this is a point you are making, but we can toss it out if you're not).

You said:


If you think this is a point I am making, you must have some statement of mine that made you think that. Please provide the statement of mine that made you think this is a point I am making. That will allow us to determine the basis of your belief.

It is clear from my post that I am not sure if you are making that assertion. Identifying that, I even offer to disregard that part of the argument. It is somewhat of a tangent and not the crux of the argument. Rather than disregard something that might not be relevant; you want me to "prove" that you made the assertion, ignoring that I wasn't clear on if you were making the assertion. See your post here (http://fpgeeks.com/forum/showthread.php/8112-Public-Domain-Pen-Documents-Now-Online?p=93981&viewfull=1#post93981).

This is freshman-level critical thinking. If you don't get it, there's no reason for me to continue the with discussion you. If you do get it and are being disingenuous by parsing the argument, there's no reason for me to continue the discussion with you.




Do you think someone who possesses a copy of a public-domain work is ethically obligated to make reproductions of that work available to the public for free?

No I do not.

Do you think someone who possesses a copy of a public-domain work is entitled to control of copies of the copy?

[Quantum Sailor]

Just my two cents from what I've been reading of this thread. There have been similar cases in the IT industry where a company has tried to claim copyright over generally considered public domain material, i.e. unix code and linux code kernels that are not proprietary anymore. Most of the time from what I've seen, and it may be a limited sample, it's held that unless you are the original copyright holder you can't claim any copyright unless you create something new. Photo copies/scans are not new in the sense that reproducing computer code is not new code. So I would say there is some legal precedent that would deny PCA having any standing. The practice in the IT industry is something akin to patent trolls to my understanding but in a reverse way.

I have also heard of the original copyright owner coming back and suing the company claiming a new copyright and winning a judgment against them.

Admittedly it's late and I'm going off of remembering things I've read but ultimately it's a legal moot point if I am remembering correctly. If they are not the original copyright holder they have no say in what happens to the copies of materials that are in the public domain, unless they obtained the copyright from the legal holder. However since there is no copyright holder in the public domain and you can't apply for a copyright on that material there's no standing. Unless they had gone through the material and constructed a new book/publication that incorporated that material in their own new setting. But I don't think the public domain material would be copyrighted just the distribution of the new material they produced. Copies do not constitute new material. If they could prove someone hacked into their servers and stole data then that is another thing entirely, but posting public domain information is not illegal and there really is no recourse in my understanding. If a member who had legal access to their archives took the data and posted it unless there was a binding contract in the membership clause about nondisclosure then that member legally had every right to do whatever he wanted with the data he/she was allowed access to.

As for the morality of taking it and posting it somewhere else, that's a gray area that one could stand on both sides of. I don't really see why there's a big fuss about posting public domain documents, if you're about the dissemination of knowledge for knowledge sake then who cares where it goes. If on the other hand you're trying to profit off of public domain information that should be out there for free you may find yourself on the wrong side of morality as well.

This is all my opinion and I'm no lawyer by any means, just remembering some precedent that I had read about in similar cases in the IT world. So it's pretty much worth what you paid for it, if there is precedent for the flip side of the argument I'd be interested to hear it as well.

[dneal]

As for the morality of taking it and posting it somewhere else, that's a gray area that one could stand on both sides of. I don't really see why there's a big fuss about posting public domain documents, if you're about the dissemination of knowledge for knowledge sake then who cares where it goes. If on the other hand you're trying to profit off of public domain information that should be out there for free you may find yourself on the wrong side of morality as well.


Very well said.

[david i]

Back to core points. I cheerfully note that there are no digital rights owned by any creator of a digital copy of a public domain works. "Reproductions" in this context is an unfortunately ambiguous term. The creator of a photocopy of a public domain work has the right to the few pieces of paper in his hand, not because he has any rights to the image, but because he owns... the physical paper. One may not take another person's 8 sheets of paper without his permission. To do so would be to steal. However, no one owns a digital copy of a public domain work. Once it is accessed it may be legally distributed at will. Nothing has been stolen, as any current possessor of the digital information has no claim to it.

I note that while no one has an obligation to distribute a digital copy in his possession of a public domain work free or otherwise (what does "for free" mean?), no one-- including he who copied first the public domain work-- can prevent others from disseminating further copies.

fun stuff.

-d

[HughC]

Back to core points. I cheerfully note that there are no digital rights owned by any creator of a digital copy of a public domain works. "Reproductions" in this context is an unfortunately ambiguous term. The creator of a photocopy of a public domain work has the right to the few pieces of paper in his hand, not because he has any rights to the image, but because he owns... the physical paper. One may not take another person's 8 sheets of paper without his permission. To do so would be to steal. However, no one owns a digital copy of a public domain work. Once it is accessed it may be legally distributed at will. Nothing has been stolen, as any current possessor of the digital information has no claim to it.

I note that while no one has an obligation to distribute a digital copy in his possession of a public domain work free or otherwise (what does "for free" mean?), no one-- including he who copied first the public domain work-- can prevent others from disseminating further copies.

fun stuff.

-d

Okay, I'm glad your cheerful ......you've made your point...which is correct.....I think there's only one left who won't admit it .

[HughC]

Just my two cents from what I've been reading of this thread. There have been similar cases in the IT industry where a company has tried to claim copyright over generally considered public domain material, i.e. unix code and linux code kernels that are not proprietary anymore. Most of the time from what I've seen, and it may be a limited sample, it's held that unless you are the original copyright holder you can't claim any copyright unless you create something new. Photo copies/scans are not new in the sense that reproducing computer code is not new code. So I would say there is some legal precedent that would deny PCA having any standing. The practice in the IT industry is something akin to patent trolls to my understanding but in a reverse way.

I have also heard of the original copyright owner coming back and suing the company claiming a new copyright and winning a judgment against them.

Admittedly it's late and I'm going off of remembering things I've read but ultimately it's a legal moot point if I am remembering correctly. If they are not the original copyright holder they have no say in what happens to the copies of materials that are in the public domain, unless they obtained the copyright from the legal holder. However since there is no copyright holder in the public domain and you can't apply for a copyright on that material there's no standing. Unless they had gone through the material and constructed a new book/publication that incorporated that material in their own new setting. But I don't think the public domain material would be copyrighted just the distribution of the new material they produced. Copies do not constitute new material. If they could prove someone hacked into their servers and stole data then that is another thing entirely, but posting public domain information is not illegal and there really is no recourse in my understanding. If a member who had legal access to their archives took the data and posted it unless there was a binding contract in the membership clause about nondisclosure then that member legally had every right to do whatever he wanted with the data he/she was allowed access to.

As for the morality of taking it and posting it somewhere else, that's a gray area that one could stand on both sides of. I don't really see why there's a big fuss about posting public domain documents, if you're about the dissemination of knowledge for knowledge sake then who cares where it goes. If on the other hand you're trying to profit off of public domain information that should be out there for free you may find yourself on the wrong side of morality as well.

This is all my opinion and I'm no lawyer by any means, just remembering some precedent that I had read about in similar cases in the IT world. So it's pretty much worth what you paid for it, if there is precedent for the flip side of the argument I'd be interested to hear it as well.

Correct as far as I'm concerned. I doubt a "binding contract in the membership clause about nondisclosure" extends , in the case of public domain documents, to being enforceable to anything other than being denied membership (banned!!). I see no issue with, say the PCA, trying to recoup their costs of scanning, hosting and like. Really the core issue here is the personal ones by those who have put the "hard yards in". The legal bits have well and truly been addressed many times ( regardless of one posters stance to the contrary) leaving only the moral/ethical ones standing and that's a personal choice. Thank you for your post.

Regards
Hugh

[kirchh]

Due to the public nature of the documents I doubt enforceability, there may be precedence, may not but I'm not going to bother looking. You can write as many conditions as you like but when broken what are going to do about it?

This argument is in line with your previous example of copying music -- it's expensive to litigate and maybe difficult to identify those who have engaged in the offending act. I understand those points, though I was not discussing those practicalities, but rather the rights themselves, which are a distinct issue.



No, you're misreading what I wrote. What I suggest amounts to trying to control instantiations of reproductions of public domain works, not the works themselves. I guess I have to repeat this: I am not suggesting that by entering into an agreement with a person who wishes to view a reproduction that I have made of a public domain work, I can therefore try to control the work itself. If a person agrees to view a reproduction that I have created of a catalog on condition that they do not disseminate it further, I am not preventing him or her from disseminating a copy of the catalog that they obtain from another source, or that he or she creates him/herself. I am not exerting control over the public domain work, any more than I would be by simply not showing anyone my copy at all.

Hardly worth arguing over. To be able to set conditions and enforce them legally you would need to demonstrate an ownership of said item (being content) as well as a loss by the action. It's hard to argue you've been wronged if there's no loss and you don't "own" the content.

Here you are getting into a specific legal question -- whether, to enforce a contract freely entered into by two parties and then violated by one of them, there needs to be a showing of ownership of the content of the works at issue. I understand that this is your opinion on this legal question, but that you don't have (or at least have not presented) any references that support this opinion.

The question of harm or loss is yet another matter, which would bear primarily on any award; I believe a reasonable showing can be made on this in the general case of the violation of a restriction on reuse of an item for which a fee is charged, and you believe that it cannot. We can agree to disagree.



Again, you are confusing copyright with the right to propose agreements that have terms for viewing reproductions of a public-domain work.Again, you are confusing the violation of a copyright with the violation of the terms of a contract freely entered into. Now, you may also believe that terms of use such as those at the above-named sites are illegal, but you haven't provided any support for such a claim.

Not at all. What I'm saying if the T.& C. are broken they're basically unenforceable. I'm not saying they're illegal ( how you came up with that beats me) just useless.

Again, I gather you mean such terms are unenforceable in the same way that you will not be "chased" and prosecuted for copying a music CD. That is, it is unlikely that a particular violator will be identified and successfully sued or prosecuted. That may be, but it is a distinct issue from that of the legality of such terms.



This is a completely different argument. You now seem to be saying not that the rights don't exist -- via copyright or contract -- but that it's hard to catch violators and expensive to litigate. But that's not the issue under discussion.

Of course it's the issue !! For it be legal it has to be enforceable under whatever jurisdiction is involved. One needs to consider the costs before action versus the chance of success, in the PCA instance it's a no brainer that action would cost more than it gains with little chance of winning...hence the issue becomes a "non issue" effectively voiding any T.& Cs. That's the reality of it.

Again, here you contend that it would be prohibitively expensive to litigate or prosecute violators, just as it often is with those who copy or redistribute music without permission, which effectively voids the protections present for music publishers, as you've explained. As noted, that's not the point I'm addressing.



Again, this gets back to your assertion that as a matter of law, one cannot impose via contract any restrictions on redistribution of reproductions of public-domain works. I haven't seen any citations that support this specific claim, but I would be interested to learn of some.

Again it's enforceability. I've already addressed this earlier. There's probably not much point in looking at this further unless you have something specific to "toss" around.

Thanks for clarifying that. I now understand that you are not offering an opinion on the legality of such terms, but on the practicalities of pursuing violators, parallel to the situation with the copying of digital music.

--Daniel

[david i]

Back to core points. I cheerfully note that there are no digital rights owned by any creator of a digital copy of a public domain works. "Reproductions" in this context is an unfortunately ambiguous term. The creator of a photocopy of a public domain work has the right to the few pieces of paper in his hand, not because he has any rights to the image, but because he owns... the physical paper. One may not take another person's 8 sheets of paper without his permission. To do so would be to steal. However, no one owns a digital copy of a public domain work. Once it is accessed it may be legally distributed at will. Nothing has been stolen, as any current possessor of the digital information has no claim to it.

I note that while no one has an obligation to distribute a digital copy in his possession of a public domain work free or otherwise (what does "for free" mean?), no one-- including he who copied first the public domain work-- can prevent others from disseminating further copies.

fun stuff.

-d

[kirchh]

My assertions are quite rational. Your reading comprehension is what appears to be lacking, or you are being disingenuous or manipulative with your interpretations.

(Example 1.) I said:


PCA thinks these documents are copies of their documents (debatable, but probable and I'll even concede that they did come from PCA for the sake of the argument).

I am not asserting that they did or didn't originate at PCA. I'm addressing the question.

You said it was debatable, but it's not. Now, if you want to make it debatable, by debating it, you are free to do so. But you haven't.


You said:


Incorrect. It is not debatable, and there is no actual debate. Even you have not claimed that they are not the same. I'm disappointed that you continue to take this position, but it's wrong.

You are asserting that they did originate at PCA. I do not have to provide a quote of you phrasing it in that manner. By eliminating the questionability, you are making an assertion and the burden of proof falls on you.

I did not request a quote of me phrasing it in that manner. I pointed out that you claimed it was debatable, but that it was, in fact, not debatable; no one has taken the position that the documents are not the same as the ones from the PCA.


(Example 2.) I said:


PCA thinks it is illegal for these documents to have been uploaded to archive.org (I think this is a point you are making, but we can toss it out if you're not).

You said:


If you think this is a point I am making, you must have some statement of mine that made you think that. Please provide the statement of mine that made you think this is a point I am making. That will allow us to determine the basis of your belief.

It is clear from my post that I am not sure if you are making that assertion. Identifying that, I even offer to disregard that part of the argument. It is somewhat of a tangent and not the crux of the argument. Rather than disregard something that might not be relevant; you want me to "prove" that you made the assertion, ignoring that I wasn't clear on if you were making the assertion. See your post here (http://fpgeeks.com/forum/showthread.php/8112-Public-Domain-Pen-Documents-Now-Online?p=93981&viewfull=1#post93981).

To be precise, you said "I think this a point you are making." I requested the basis for your thinking that. You evade, and engage in a disappointing tactic by purporting to quote me using the word "prove," which I did not do. If you wish to retract your statement because you now realize that you had no basis for forming your belief, you are free to do so.


This is freshman-level critical thinking. If you don't get it, there's no reason for me to continue the with discussion you. If you do get it and are being disingenuous by parsing the argument, there's no reason for me to continue the discussion with you.

It's disappointing that you are engaging in ad-hominem argument. I'd discourage that course of action.



Do you think someone who possesses a copy of a public-domain work is ethically obligated to make reproductions of that work available to the public for free?

No I do not.

Do you think someone who possesses a copy of a public-domain work is entitled to control of copies of the copy?

Yes.

Do you think someone who possesses a copy of a public-domain work is unethical if they make reproductions of that work available for a fee?

--Daniel

[kirchh]

Just my two cents from what I've been reading of this thread. There have been similar cases in the IT industry where a company has tried to claim copyright over generally considered public domain material, i.e. unix code and linux code kernels that are not proprietary anymore. Most of the time from what I've seen, and it may be a limited sample, it's held that unless you are the original copyright holder you can't claim any copyright unless you create something new. Photo copies/scans are not new in the sense that reproducing computer code is not new code. So I would say there is some legal precedent that would deny PCA having any standing. The practice in the IT industry is something akin to patent trolls to my understanding but in a reverse way.

I have also heard of the original copyright owner coming back and suing the company claiming a new copyright and winning a judgment against them.

Admittedly it's late and I'm going off of remembering things I've read but ultimately it's a legal moot point if I am remembering correctly. If they are not the original copyright holder they have no say in what happens to the copies of materials that are in the public domain, unless they obtained the copyright from the legal holder. However since there is no copyright holder in the public domain and you can't apply for a copyright on that material there's no standing. Unless they had gone through the material and constructed a new book/publication that incorporated that material in their own new setting. But I don't think the public domain material would be copyrighted just the distribution of the new material they produced. Copies do not constitute new material. If they could prove someone hacked into their servers and stole data then that is another thing entirely, but posting public domain information is not illegal and there really is no recourse in my understanding. If a member who had legal access to their archives took the data and posted it unless there was a binding contract in the membership clause about nondisclosure then that member legally had every right to do whatever he wanted with the data he/she was allowed access to.

Interesting but irrelevant, as we are not discussing the practice of attempting to copyright public-domain materials.


As for the morality of taking it and posting it somewhere else, that's a gray area that one could stand on both sides of. I don't really see why there's a big fuss about posting public domain documents, if you're about the dissemination of knowledge for knowledge sake then who cares where it goes. If on the other hand you're trying to profit off of public domain information that should be out there for free you may find yourself on the wrong side of morality as well.

Embedded misconception here. "Public domain" does not mean "should be out there for free." Copyright gives the exclusive right to make copies, and thus profit, to the author (or designee, etc.). Once copyright terminates, any party may make copies, and thus profit, without constraint of copyright law. It has nothing to do with things being free.

I'm surprised how widespread this misconception is.

--Daniel

[kirchh]

As for the morality of taking it and posting it somewhere else, that's a gray area that one could stand on both sides of. I don't really see why there's a big fuss about posting public domain documents, if you're about the dissemination of knowledge for knowledge sake then who cares where it goes. If on the other hand you're trying to profit off of public domain information that should be out there for free you may find yourself on the wrong side of morality as well.


Very well said.

I completely disagree, in light (in part) of the gross misconception about what public domain status means. Ownership of a copyright gives the owner exclusive right to make profit off of copies; termination of copyright eliminates the exclusivity of that right to make a profit under copyright protection. Public domain does not mean "should be out there for free."

The ability to make a profit, or, more broadly, to have conditions for viewing, produces a strong incentive for people and organizations to assemble, scan, OCR, classify, store, maintain, and provide access to collections of public domain documents. Absent such an incentive structure, it seems unlikely we would have such valuable research tools as Ancestry.com, Newspapers.com, NewspaperARCHIVE.com, and so on.

--Daniel

[kirchh]

Just my two cents from what I've been reading of this thread. There have been similar cases in the IT industry where a company has tried to claim copyright over generally considered public domain material, i.e. unix code and linux code kernels that are not proprietary anymore. Most of the time from what I've seen, and it may be a limited sample, it's held that unless you are the original copyright holder you can't claim any copyright unless you create something new. Photo copies/scans are not new in the sense that reproducing computer code is not new code. So I would say there is some legal precedent that would deny PCA having any standing. The practice in the IT industry is something akin to patent trolls to my understanding but in a reverse way.

I have also heard of the original copyright owner coming back and suing the company claiming a new copyright and winning a judgment against them.

Admittedly it's late and I'm going off of remembering things I've read but ultimately it's a legal moot point if I am remembering correctly. If they are not the original copyright holder they have no say in what happens to the copies of materials that are in the public domain, unless they obtained the copyright from the legal holder. However since there is no copyright holder in the public domain and you can't apply for a copyright on that material there's no standing. Unless they had gone through the material and constructed a new book/publication that incorporated that material in their own new setting. But I don't think the public domain material would be copyrighted just the distribution of the new material they produced. Copies do not constitute new material. If they could prove someone hacked into their servers and stole data then that is another thing entirely, but posting public domain information is not illegal and there really is no recourse in my understanding. If a member who had legal access to their archives took the data and posted it unless there was a binding contract in the membership clause about nondisclosure then that member legally had every right to do whatever he wanted with the data he/she was allowed access to.

As for the morality of taking it and posting it somewhere else, that's a gray area that one could stand on both sides of. I don't really see why there's a big fuss about posting public domain documents, if you're about the dissemination of knowledge for knowledge sake then who cares where it goes. If on the other hand you're trying to profit off of public domain information that should be out there for free you may find yourself on the wrong side of morality as well.

This is all my opinion and I'm no lawyer by any means, just remembering some precedent that I had read about in similar cases in the IT world. So it's pretty much worth what you paid for it, if there is precedent for the flip side of the argument I'd be interested to hear it as well.

Correct as far as I'm concerned. I doubt a "binding contract in the membership clause about nondisclosure" extends , in the case of public domain documents, to being enforceable to anything other than being denied membership (banned!!). I see no issue with, say the PCA, trying to recoup their costs of scanning, hosting and like. Really the core issue here is the personal ones by those who have put the "hard yards in". The legal bits have well and truly been addressed many times ( regardless of one posters stance to the contrary) leaving only the moral/ethical ones standing and that's a personal choice. Thank you for your post.

Regards
Hugh

To be accurate, you have a different position on the "legal bits" than do some others. You have not asserted that the types of user agreements under discussion are legally improper, but rather that it would be difficult to identify and pursue violators and expensive to litigate. These are materially different positions.

--Daniel

[dneal]

My assertions are quite rational. Your reading comprehension is what appears to be lacking, or you are being disingenuous or manipulative with your interpretations.

(Example 1.) I said:


PCA thinks these documents are copies of their documents (debatable, but probable and I'll even concede that they did come from PCA for the sake of the argument).

I am not asserting that they did or didn't originate at PCA. I'm addressing the question.

You said it was debatable, but it's not. Now, if you want to make it debatable, by debating it, you are free to do so. But you haven't.

I do not have to choose to debate a thing for it to be debatable. Appropriate tax rates, capital punishment, chocolate or vanilla are all debatable whether the debate is engaged in or not.

You are of the opinion that it is a foregone conclusion. I have not made that decision. That is a lack of agreement between us, so the topic is debatable. I do not understand why you insist on focusing on these irrelevant points and arguing semantics. I acknowledge that it is probable, and have conceded the point for the sake of argument because it isn't significant.



You said:


Incorrect. It is not debatable, and there is no actual debate. Even you have not claimed that they are not the same. I'm disappointed that you continue to take this position, but it's wrong.

You are asserting that they did originate at PCA. I do not have to provide a quote of you phrasing it in that manner. By eliminating the questionability, you are making an assertion and the burden of proof falls on you.

I did not request a quote of me phrasing it in that manner. I pointed out that you claimed it was debatable, but that it was, in fact, not debatable; no one has taken the position that the documents are not the same as the ones from the PCA.

See above.



(Example 2.) I said:


PCA thinks it is illegal for these documents to have been uploaded to archive.org (I think this is a point you are making, but we can toss it out if you're not).

You said:


If you think this is a point I am making, you must have some statement of mine that made you think that. Please provide the statement of mine that made you think this is a point I am making. That will allow us to determine the basis of your belief.

It is clear from my post that I am not sure if you are making that assertion. Identifying that, I even offer to disregard that part of the argument. It is somewhat of a tangent and not the crux of the argument. Rather than disregard something that might not be relevant; you want me to "prove" that you made the assertion, ignoring that I wasn't clear on if you were making the assertion. See your post here (http://fpgeeks.com/forum/showthread.php/8112-Public-Domain-Pen-Documents-Now-Online?p=93981&viewfull=1#post93981).

To be precise, you said "I think this a point you are making." I requested the basis for your thinking that. You evade, and engage in a disappointing tactic by purporting to quote me using the word "prove," which I did not do. If you wish to retract your statement because you now realize that you had no basis for forming your belief, you are free to do so.

Again, you are focused on irrelevant semantics, and frankly it is tiresome. There is clearly a link to your post provided above.



This is freshman-level critical thinking. If you don't get it, there's no reason for me to continue the with discussion you. If you do get it and are being disingenuous by parsing the argument, there's no reason for me to continue the discussion with you.

It's disappointing that you are engaging in ad-hominem argument. I'd discourage that course of action.

You do not use "ad-hominem" correctly. "You are a big, smelly, doo-doo head and therefore you are wrong" would be an ad-hominem argument. I pointed out that you do not appear to have a grasp of basic logic / critical thinking. Although you might find that insulting, it's not automatically an ad-hominem argument. With all sincerity, you do not appear to me to have a grasp on simple logical principles, as evidenced above. Also with all sincerity, if you are incapable of employing basic principles of critical thinking, or you are intentionally being obtuse; then we have a problem and I'm no longer going to bother with this. In fact, I'm going to follow the advice in your sig-tag with regard to these petty side issues. Post away, but I will not respond to them any longer.




Do you think someone who possesses a copy of a public-domain work is ethically obligated to make reproductions of that work available to the public for free?

No I do not.

Do you think someone who possesses a copy of a public-domain work is entitled to control of copies of the copy?

Yes.

Do you think someone who possesses a copy of a public-domain work is unethical if they make reproductions of that work available for a fee?

--Daniel

Now lets address the real argument.

There is no legal or ethical rationale that supports the notion that someone who possesses a copy of a public domain work should also control copies of that copy, for the same reason the originator of the work now in the public domain does not control the first or future copies. Yes you may control your specific copy (which you hypothetically represent as a hardcopy in a drawer). But that does not extend beyond that circumstance. Allowing your copy to be copied (which is what took place with making the digital version available) allows you to still retain control of your copy. You may lock your hard copy away again in your drawer, or you may remove the digital version from the means it was previously distributed and no longer make it available. You do not own the content, the paper the new copy was printed on, or the digital file of the new copy. You do not own or have control of this for precisely the same reason the originator of the work does not have control. It is owned by the public and members of that group may do with their portion what they wish.

Generally, I do not think it is unethical to distribute public domain work for a fee. I do think it is unethical to claim ownership of that public-domain work. Ancestry.com does not own my grandfathers' death certificate. Whether I choose to go to the courthouse and procure my copy, or if I choose to pay them for getting a copy for me; I am free to do as I wish with what would now be my copy. Were I to post it to a website for my family members to download, I would find it absolutely ridiculous for Ancestry.com to claim ownership or control of what is now my digital copy.

[Quantum Sailor]

Interesting but irrelevant, as we are not discussing the practice of attempting to copyright public-domain materials.


As for the morality of taking it and posting it somewhere else, that's a gray area that one could stand on both sides of. I don't really see why there's a big fuss about posting public domain documents, if you're about the dissemination of knowledge for knowledge sake then who cares where it goes. If on the other hand you're trying to profit off of public domain information that should be out there for free you may find yourself on the wrong side of morality as well.

Embedded misconception here. "Public domain" does not mean "should be out there for free." Copyright gives the exclusive right to make copies, and thus profit, to the author (or designee, etc.). Once copyright terminates, any party may make copies, and thus profit, without constraint of copyright law. It has nothing to do with things being free.

I'm surprised how widespread this misconception is.

--Daniel

Public domain means that you can use the information for free without paying royalties. For example i can go and make a copy of the music for Beethoven's 9th without having to go pay someone for making it, however I can not prevent others from making a copy, nor prevent them from copying mine unless I attain a copyright on the work that I did. Photo copying or scanning is not original work that a copyright is applicable to. Public domain is by definition able to be used for free. If they are trying to claim control, hence standing for legal recourse, for dissemination of public domain information they are in fact trying to copyright that material. Even if it is just a digital copy of that material.

You are free to attempt to make a profit off of anything that is legally available. But if you notice all the public domain books in stores like Barnes and Nobles and Amazon are not the same copy. I imagine there is even some kind of copyright on the cover art etc. When the issue of legality is brought up about posting copies this is exactly the purview of copyright law. Without that you have no standing anyway and the argument is invalid. You, me, the PCA, no one owns intellectual property without copyright and therefore has no standing to argue the placement of said material anywhere. If the claim is that they own it then they had better have something to back up that they own it, a scan of a public domain document is not something that is open for legal issues in my understanding.

Again all from what I've gathered and only my opinion.

[kirchh]

My assertions are quite rational. Your reading comprehension is what appears to be lacking, or you are being disingenuous or manipulative with your interpretations.

(Example 1.) I said:


PCA thinks these documents are copies of their documents (debatable, but probable and I'll even concede that they did come from PCA for the sake of the argument).

I am not asserting that they did or didn't originate at PCA. I'm addressing the question.

You said it was debatable, but it's not. Now, if you want to make it debatable, by debating it, you are free to do so. But you haven't.

I do not have to choose to debate a thing for it to be debatable. Appropriate tax rates, capital punishment, chocolate or vanilla are all debatable whether the debate is engaged in or not.

You are of the opinion that it is a foregone conclusion. I have not made that decision. That is a lack of agreement between us, so the topic is debatable.

Incorrect. The fact that you have not examined the issue, and thus cannot yet take a position, does not make the question debatable. What a strange assertion.


I do not understand why you insist on focusing on these irrelevant points and arguing semantics. I acknowledge that it is probable, and have conceded the point for the sake of argument because it isn't significant.

If it is irrelevant, why did you raise it?

Your claim that it is debatable casts doubt on the PCA's statement that the documents are the same. I object to that, because, as we now know, you have no reason to raise that doubt, because you haven't even examined the matter sufficiently to take a position on it. Yet, you make a statement that the question is debatable, then distance yourself from it by labeling it "irrelevant."




(Example 2.) I said:


PCA thinks it is illegal for these documents to have been uploaded to archive.org (I think this is a point you are making, but we can toss it out if you're not).

You said:


If you think this is a point I am making, you must have some statement of mine that made you think that. Please provide the statement of mine that made you think this is a point I am making. That will allow us to determine the basis of your belief.

It is clear from my post that I am not sure if you are making that assertion. Identifying that, I even offer to disregard that part of the argument. It is somewhat of a tangent and not the crux of the argument. Rather than disregard something that might not be relevant; you want me to "prove" that you made the assertion, ignoring that I wasn't clear on if you were making the assertion. See your post here (http://fpgeeks.com/forum/showthread.php/8112-Public-Domain-Pen-Documents-Now-Online?p=93981&viewfull=1#post93981).

To be precise, you said "I think this a point you are making." I requested the basis for your thinking that. You evade, and engage in a disappointing tactic by purporting to quote me using the word "prove," which I did not do. If you wish to retract your statement because you now realize that you had no basis for forming your belief, you are free to do so.

Again, you are focused on irrelevant semantics, and frankly it is tiresome. There is clearly a link to your post provided above.

I understand that you now will not provide the specific statement of mine that caused you to think I made the point that the PCA thinks it is illegal for these documents to have been uploaded to archive.org.




This is freshman-level critical thinking. If you don't get it, there's no reason for me to continue the with discussion you. If you do get it and are being disingenuous by parsing the argument, there's no reason for me to continue the discussion with you.

It's disappointing that you are engaging in ad-hominem argument. I'd discourage that course of action.

You do not use "ad-hominem" correctly. "You are a big, smelly, doo-doo head and therefore you are wrong" would be an ad-hominem argument. I pointed out that you do not appear to have a grasp of basic logic / critical thinking. Although you might find that insulting, it's not automatically an ad-hominem argument. With all sincerity, you do not appear to me to have a grasp on simple logical principles, as evidenced above. Also with all sincerity, if you are incapable of employing basic principles of critical thinking, or you are intentionally being obtuse; then we have a problem and I'm no longer going to bother with this. In fact, I'm going to follow the advice in your sig-tag with regard to these petty side issues. Post away, but I will not respond to them any longer.

Incorrect. You specifically levied the insult "freshman-level critical thinking" to attack my argument. Ad-hominem.





Do you think someone who possesses a copy of a public-domain work is ethically obligated to make reproductions of that work available to the public for free?

No I do not.

Do you think someone who possesses a copy of a public-domain work is entitled to control of copies of the copy?

Yes.

Do you think someone who possesses a copy of a public-domain work is unethical if they make reproductions of that work available for a fee?

--Daniel

Now lets address the real argument.

There is no legal or ethical rationale that supports the notion that someone who possesses a copy of a public domain work should also control copies of that copy, for the same reason the originator of the work now in the public domain does not control the first or future copies. Yes you may control your specific copy (which you hypothetically represent as a hardcopy in a drawer). But that does not extend beyond that circumstance. Allowing your copy to be copied (which is what took place with making the digital version available) allows you to still retain control of your copy. You may lock your hard copy away again in your drawer, or you may remove the digital version from the means it was previously distributed and no longer make it available. You do not own the content, the paper the new copy was printed on, or the digital file of the new copy. You do not own or have control of this for precisely the same reason the originator of the work does not have control. It is owned by the public and members of that group may do with their portion what they wish.

Generally, I do not think it is unethical to distribute public domain work for a fee. I do think it is unethical to claim ownership of that public-domain work. Ancestry.com does not own my grandfathers' death certificate. Whether I choose to go to the courthouse and procure my copy, or if I choose to pay them for getting a copy for me; I am free to do as I wish with what would now be my copy. Were I to post it to a website for my family members to download, I would find it absolutely ridiculous for Ancestry.com to claim ownership or control of what is now my digital copy.

So, you do not think it is unethical to distribute public domain work for a fee, and therefore if someone were distributing public domain work for a fee, you wouldn't say of them, that's not the most ethical thing to be doing.

--Daniel

[dneal]

So, you do not think it is unethical to distribute public domain work for a fee, and therefore if someone were distributing public domain work for a fee, you wouldn't say of them, that's not the most ethical thing to be doing.

--Daniel

I believe that's what I said, with the "generally" caveat.

Strictly speaking, and depending on the ethical theory referenced, there are cases where it could be argued to be unethical.

[kirchh]

So, you do not think it is unethical to distribute public domain work for a fee, and therefore if someone were distributing public domain work for a fee, you wouldn't say of them, that's not the most ethical thing to be doing.

--Daniel

I believe that's what I said, with the "generally" caveat.

Strictly speaking, and depending on the ethical theory referenced, there are cases where it could be argued to be unethical.

Taking this one step at a time:

So you would not say, of the PCA's offering of access to the documents in their library, that it wasn't the most ethical thing to be doing.

I'm narrowly looking at their selling access to them via a membership, not other issues involving conditions on reuse.

--Daniel

[dneal]

Taking this one step at a time:

So you would not say, of the PCA's offering of access to the documents in their library, that it wasn't the most ethical thing to be doing.

I'm narrowly looking at their selling access to them via a membership, not other issues involving conditions on reuse.

--Daniel

Let's avoid the double negatives.

Generally, I think it is ethical for PCA to restrict access to the digital copies of public domain information to their members - even when membership has a mandatory fee.

[kirchh]

Taking this one step at a time:

So you would not say, of the PCA's offering of access to the documents in their library, that it wasn't the most ethical thing to be doing.

I'm narrowly looking at their selling access to them via a membership, not other issues involving conditions on reuse.

--Daniel

Let's avoid the double negatives.

Generally, I think it is ethical for PCA to restrict access to the digital copies of public domain information to their members - even when membership has a mandatory fee.

So you have no ethical objection to the PCA selling them via a membership mandatory to viewing.

--Daniel

[dneal]

So you have no ethical objection to the PCA selling them via a membership mandatory to viewing.

--Daniel

Generally, no I don't. Is there a point to all this reiteration?

[Laura N]

Interesting but irrelevant, as we are not discussing the practice of attempting to copyright public-domain materials.


As for the morality of taking it and posting it somewhere else, that's a gray area that one could stand on both sides of. I don't really see why there's a big fuss about posting public domain documents, if you're about the dissemination of knowledge for knowledge sake then who cares where it goes. If on the other hand you're trying to profit off of public domain information that should be out there for free you may find yourself on the wrong side of morality as well.

Embedded misconception here. "Public domain" does not mean "should be out there for free." Copyright gives the exclusive right to make copies, and thus profit, to the author (or designee, etc.). Once copyright terminates, any party may make copies, and thus profit, without constraint of copyright law. It has nothing to do with things being free.

I'm surprised how widespread this misconception is.

--Daniel

Public domain means that you can use the information for free without paying royalties. For example i can go and make a copy of the music for Beethoven's 9th without having to go pay someone for making it, however I can not prevent others from making a copy, nor prevent them from copying mine unless I attain a copyright on the work that I did. Photo copying or scanning is not original work that a copyright is applicable to. Public domain is by definition able to be used for free. If they are trying to claim control, hence standing for legal recourse, for dissemination of public domain information they are in fact trying to copyright that material. Even if it is just a digital copy of that material.

You are free to attempt to make a profit off of anything that is legally available. But if you notice all the public domain books in stores like Barnes and Nobles and Amazon are not the same copy. I imagine there is even some kind of copyright on the cover art etc. When the issue of legality is brought up about posting copies this is exactly the purview of copyright law. Without that you have no standing anyway and the argument is invalid. You, me, the PCA, no one owns intellectual property without copyright and therefore has no standing to argue the placement of said material anywhere. If the claim is that they own it then they had better have something to back up that they own it, a scan of a public domain document is not something that is open for legal issues in my understanding.

Again all from what I've gathered and only my opinion.

I appreciate your Post 53, and I certainly thank you for attempting to add light, rather than heat to this discussion. However, the part I have bolded here is not quite correct. Once you make a copy of that symphony, that copy is your property, and you can absolutely restrict what people can do with it. You do not have to make it available to others to copy or use. This is not a question of copyright law. You own your copy. You have property law rights in that. No one could knock on your door and insist you give them your copy to make use of as they will, on the grounds that the underlying work is "in the public domain."

People are talking about this situation as if it is a clear case of some narrow branch of copyright law. Those people manifestly are not lawyers. I am not an intellectual property lawyer, but I can tell you that the issue is surely much more complicated than has been presented. First, no legal issue is ever black and white, or clear-cut, without exception, distinction or defense. Second, intellectual property law is among the most complex and abstruse branches of the law. Third, and most importantly, the facts as disclosed in this thread indicate that there are, in addition to possible intellectual property issues, issues of contract and tort law that may be implicated. We don't know the full set of facts. We don't know the full law. I, at least, don't even know what jurisdiction's law may be at issue.

We simply cannot reach the legal conclusions that so many non-lawyers seem to so blithely put forth in this thread (not you, Quantum Sailor).

[kirchh]

So you have no ethical objection to the PCA selling them via a membership mandatory to viewing.

--Daniel

Generally, no I don't. Is there a point to all this reiteration?

I appreciate your willingness to change your position on this point.

You'd previously said,

Now that the legal silliness is out of the way, I'm looking at the ethical problem. PCA didn't create or own the documents, but had no problem selling them via a membership mandatory to viewing. I understand the usefulness in funding the organization, but if you want to get down to brass tacks... it wasn't the most ethical thing to be doing in the first place. Get past that objection and maybe I would care about what happened thereafter.

Now that I've gotten past that objection, we have finally made some progress.

--Daniel

[dneal]

So you have no ethical objection to the PCA selling them via a membership mandatory to viewing.

--Daniel

Generally, no I don't. Is there a point to all this reiteration?

I appreciate your willingness to change your position on this point.

You'd previously said,

Now that the legal silliness is out of the way, I'm looking at the ethical problem. PCA didn't create or own the documents, but had no problem selling them via a membership mandatory to viewing. I understand the usefulness in funding the organization, but if you want to get down to brass tacks... it wasn't the most ethical thing to be doing in the first place. Get past that objection and maybe I would care about what happened thereafter.

Now that I've gotten past that objection, we have finally made some progress.

--Daniel

I was waiting for that, but hoped you had something more clever.

Sorry to disappoint, but that is not a change of position. I qualified my answer with "generally", and also noted that certain ethical theories could argue that it was unethical. Utilitarianism, to name one.

I fully expect to see "incorrect" as a response.

[kirchh]

So you have no ethical objection to the PCA selling them via a membership mandatory to viewing.

--Daniel

Generally, no I don't. Is there a point to all this reiteration?

I appreciate your willingness to change your position on this point.

You'd previously said,

Now that the legal silliness is out of the way, I'm looking at the ethical problem. PCA didn't create or own the documents, but had no problem selling them via a membership mandatory to viewing. I understand the usefulness in funding the organization, but if you want to get down to brass tacks... it wasn't the most ethical thing to be doing in the first place. Get past that objection and maybe I would care about what happened thereafter.

Now that I've gotten past that objection, we have finally made some progress.

--Daniel

I was waiting for that, but hoped you had something more clever.

Sorry to disappoint, but that is not a change of position. I qualified my answer with "generally", and also noted that certain ethical theories could argue that it was unethical. Utilitarianism, to name one.

I fully expect to see "incorrect" as a response.

Cleverness is not important; constructive discussion is important. "Certain ethical theories" are not being examined; your personal opinion of the ethics of the issue are what I am exploring.

You'd previously said you had an ethical objection to the PCA's selling access to public domain documents. You now say you have no ethical objection to that practice. Your claim that your current stance only applies "generally" does not illuminate how you can hold both positions simultaneously. In what way did your earlier statement not fall under your current position that generally, you have no ethical objection to the PCA selling them via a membership mandatory to viewing?

--Daniel

[david i]

Back to core points. I cheerfully note that there are no digital rights owned by any creator of a digital copy of a public domain works. "Reproductions" in this context is an unfortunately ambiguous term. The creator of a photocopy of a public domain work has the right to the few pieces of paper in his hand, not because he has any rights to the image, but because he owns... the physical paper. One may not take another person's 8 sheets of paper without his permission. To do so would be to steal. However, no one owns a digital copy of a public domain work. Once it is accessed it may be legally distributed at will. Nothing has been stolen, as any current possessor of the digital information has no claim to it.

I note that while no one has an obligation to distribute a digital copy in his possession of a public domain work free or otherwise (what does "for free" mean?), no one-- including he who copied first the public domain work-- can prevent others from disseminating further copies.

fun stuff.

-d

[david i]

Of note, I have numerous catalogue scans that are not from the PCA.

[dneal]

Cleverness is not important; constructive discussion is important. "Certain ethical theories" are not being examined; your personal opinion of the ethics of the issue are what I am exploring.

You'd previously said you had an ethical objection to the PCA's selling access to public domain documents. You now say you have no ethical objection to that practice. Your claim that your current stance only applies "generally" does not illuminate how you can hold both positions simultaneously. In what way did your earlier statement not fall under your current position that generally, you have no ethical objection to the PCA selling them via a membership mandatory to viewing?

--Daniel

Personally, I don't have an ethical issue with it. "When it comes down to brass tacks" (i.e.: if you want to get technical with certain ethical theories) it isn't the most ethical thing to be doing in the first place. There is absolutely no contradiction between having an opinion and recognizing that there are competing arguments.

Honestly, you don't seem to be interested in constructive discussion. You seem to be interested in "winning", with your fixation on semantics and disingenuous manipulation and misrepresentation of my posts (which you've done consistently).

I'm left with little alternative but to follow the advice from your sig-tag, in toto.

[kirchh]

Cleverness is not important; constructive discussion is important. "Certain ethical theories" are not being examined; your personal opinion of the ethics of the issue are what I am exploring.

You'd previously said you had an ethical objection to the PCA's selling access to public domain documents. You now say you have no ethical objection to that practice. Your claim that your current stance only applies "generally" does not illuminate how you can hold both positions simultaneously. In what way did your earlier statement not fall under your current position that generally, you have no ethical objection to the PCA selling them via a membership mandatory to viewing?

--Daniel

Personally, I don't have an ethical issue with it. "When it comes down to brass tacks" (i.e.: if you want to get technical with certain ethical theories) it isn't the most ethical thing to be doing in the first place. There is absolutely no contradiction between having an opinion and recognizing that there are competing arguments.

Honestly, you don't seem to be interested in constructive discussion. You seem to be interested in "winning", with your fixation on semantics and disingenuous manipulation and misrepresentation of my posts (which you've done consistently).

I'm left with little alternative but to follow the advice from your sig-tag, in toto.

Again, I'm not interested in examining the issue by applying various ethical theories. I'm interested in examining your own opinion of the ethics. Now, you seem to be saying your own personal stance is that you have no ethical objection, but that certain ethical theories might find it unethical. Therefore, your previously expressed ethical objection was not, in fact, a position that you personally held, but rather an (unstated) interpretation under some ethical theory (a "competing argument" but not one your own opinion aligns with).

The important fact we have established is that you have no ethical objection to the PCA's selling access to copies of public-domain documents they hold. I appreciate your clearing that up.

If I say that I am considering spending a week at the library and making a set of copies of a substantial quantity of interesting public-domain items in which you have an interest (but not the time or resources to easily copy on your own), and I propose to you that I will sell to you a copy of my set of copies for a fee, would you find my proposal unethical?

--Daniel

[Quantum Sailor]

Interesting but irrelevant, as we are not discussing the practice of attempting to copyright public-domain materials.


As for the morality of taking it and posting it somewhere else, that's a gray area that one could stand on both sides of. I don't really see why there's a big fuss about posting public domain documents, if you're about the dissemination of knowledge for knowledge sake then who cares where it goes. If on the other hand you're trying to profit off of public domain information that should be out there for free you may find yourself on the wrong side of morality as well.

Embedded misconception here. "Public domain" does not mean "should be out there for free." Copyright gives the exclusive right to make copies, and thus profit, to the author (or designee, etc.). Once copyright terminates, any party may make copies, and thus profit, without constraint of copyright law. It has nothing to do with things being free.

I'm surprised how widespread this misconception is.

--Daniel

Public domain means that you can use the information for free without paying royalties. For example i can go and make a copy of the music for Beethoven's 9th without having to go pay someone for making it, however I can not prevent others from making a copy, nor prevent them from copying mine unless I attain a copyright on the work that I did. Photo copying or scanning is not original work that a copyright is applicable to. Public domain is by definition able to be used for free. If they are trying to claim control, hence standing for legal recourse, for dissemination of public domain information they are in fact trying to copyright that material. Even if it is just a digital copy of that material.

You are free to attempt to make a profit off of anything that is legally available. But if you notice all the public domain books in stores like Barnes and Nobles and Amazon are not the same copy. I imagine there is even some kind of copyright on the cover art etc. When the issue of legality is brought up about posting copies this is exactly the purview of copyright law. Without that you have no standing anyway and the argument is invalid. You, me, the PCA, no one owns intellectual property without copyright and therefore has no standing to argue the placement of said material anywhere. If the claim is that they own it then they had better have something to back up that they own it, a scan of a public domain document is not something that is open for legal issues in my understanding.

Again all from what I've gathered and only my opinion.

I appreciate your Post 53, and I certainly thank you for attempting to add light, rather than heat to this discussion. However, the part I have bolded here is not quite correct. Once you make a copy of that symphony, that copy is your property, and you can absolutely restrict what people can do with it. You do not have to make it available to others to copy or use. This is not a question of copyright law. You own your copy. You have property law rights in that. No one could knock on your door and insist you give them your copy to make use of as they will, on the grounds that the underlying work is "in the public domain."

People are talking about this situation if it is a clear case of some narrow branch of copyright law. Those people manifestly are not lawyers. I am not an intellectual property lawyer, but I can tell you that the issue is surely much more complicated than has been presented. First, no legal issue is ever black and white, or clear-cut, without exception, distinction or defense. Second, intellectual property law is among the most complex and abstruse branch of the law. Third, and most importantly, the facts as disclosed in this thread indicate that there are, in addition to possible intellectual property issues, issues of contract and tort law that may be implicated. We don't know the full set of facts. We don't know the full law. I, at least, don't even know what jurisdiction's law may be at issue.

We simply cannot reach the legal conclusions that so many non-lawyers seem to so blithely put forth in this thread (not you, Quantum Sailor).

Your point is certainly valid, I may have to look around and see what physical property laws apply to online posts just for curiosity sake. Its a clear cut case to me if someone comes and takes a journal I've written as theft, however if I post that journal online with no express copyright (I've seen expressed public use copyrights before) do I have recourse against them for republishing it somewhere else? I was keeping in mind that someone had made scans and posted them on the internet. I am certainly no lawyer and my only reference for precedent is a few IT copyright cases that I found to be at least mildly entertaining enough to read, given the legal system I'm sure there are precedents that contradict the ones I've seen. With that said I have posted all the thoughts that I can justify as useful in this discussion :) In all truth that time may have passed as I wrote my first response lol.

[david i]

Back to core points. I cheerfully note that there are no digital rights owned by any creator of a digital copy of a public domain works. "Reproductions" in this context is an unfortunately ambiguous term. The creator of a photocopy of a public domain work has the right to the few pieces of paper in his hand, not because he has any rights to the image, but because he owns... the physical paper. One may not take another person's 8 sheets of paper without his permission. To do so would be to steal. However, no one owns a digital copy of a public domain work. Once it is accessed it may be legally distributed at will. Nothing has been stolen, as any current possessor of the digital information has no claim to it.

I note that while no one has an obligation to distribute a digital copy in his possession of a public domain work free or otherwise (what does "for free" mean?), no one-- including he who copied first the public domain work-- can prevent others from disseminating further copies.

fun stuff.

-d

[david i]

I note that I have many scans of catalogues and such that are not in the PCA library. I thank Jon Veley for encouraging pendom to make all sorts of public domain pen material readily more available to pen collectors than such material has been previously.

regards

d

[david i]

Cleverness is not important; constructive discussion is important. "Certain ethical theories" are not being examined; your personal opinion of the ethics of the issue are what I am exploring.

You'd previously said you had an ethical objection to the PCA's selling access to public domain documents. You now say you have no ethical objection to that practice. Your claim that your current stance only applies "generally" does not illuminate how you can hold both positions simultaneously. In what way did your earlier statement not fall under your current position that generally, you have no ethical objection to the PCA selling them via a membership mandatory to viewing?

--Daniel

Personally, I don't have an ethical issue with it. "When it comes down to brass tacks" (i.e.: if you want to get technical with certain ethical theories) it isn't the most ethical thing to be doing in the first place. There is absolutely no contradiction between having an opinion and recognizing that there are competing arguments.

Honestly, you don't seem to be interested in constructive discussion. You seem to be interested in "winning", with your fixation on semantics and disingenuous manipulation and misrepresentation of my posts (which you've done consistently).

I'm left with little alternative but to follow the advice from your sig-tag, in toto.

Indeed and as you suggest, those who obsess with winning tend to get pretty kvetchy when they can't. You have observed that in a fellow here. Meanwhile of course you are correct that no one has any rights to restrict distribution of the fountain pen public domain material we discuss. As with the threat at FPB, this has been enlightening.

[david i]

I note that "should be out there 'for' free?" is a diversion. The good question is "can be out there for no fee?". Indeed.

-d

[david i]

Interesting but irrelevant, as we are not discussing the practice of attempting to copyright public-domain materials.


As for the morality of taking it and posting it somewhere else, that's a gray area that one could stand on both sides of. I don't really see why there's a big fuss about posting public domain documents, if you're about the dissemination of knowledge for knowledge sake then who cares where it goes. If on the other hand you're trying to profit off of public domain information that should be out there for free you may find yourself on the wrong side of morality as well.

Embedded misconception here. "Public domain" does not mean "should be out there for free." Copyright gives the exclusive right to make copies, and thus profit, to the author (or designee, etc.). Once copyright terminates, any party may make copies, and thus profit, without constraint of copyright law. It has nothing to do with things being free.

I'm surprised how widespread this misconception is.

--Daniel

Public domain means that you can use the information for free without paying royalties. For example i can go and make a copy of the music for Beethoven's 9th without having to go pay someone for making it, however I can not prevent others from making a copy, nor prevent them from copying mine unless I attain a copyright on the work that I did. Photo copying or scanning is not original work that a copyright is applicable to. Public domain is by definition able to be used for free. If they are trying to claim control, hence standing for legal recourse, for dissemination of public domain information they are in fact trying to copyright that material. Even if it is just a digital copy of that material.

You are free to attempt to make a profit off of anything that is legally available. But if you notice all the public domain books in stores like Barnes and Nobles and Amazon are not the same copy. I imagine there is even some kind of copyright on the cover art etc. When the issue of legality is brought up about posting copies this is exactly the purview of copyright law. Without that you have no standing anyway and the argument is invalid. You, me, the PCA, no one owns intellectual property without copyright and therefore has no standing to argue the placement of said material anywhere. If the claim is that they own it then they had better have something to back up that they own it, a scan of a public domain document is not something that is open for legal issues in my understanding.

Again all from what I've gathered and only my opinion.

I appreciate your Post 53, and I certainly thank you for attempting to add light, rather than heat to this discussion. However, the part I have bolded here is not quite correct. Once you make a copy of that symphony, that copy is your property, and you can absolutely restrict what people can do with it. You do not have to make it available to others to copy or use. This is not a question of copyright law. You own your copy. You have property law rights in that. No one could knock on your door and insist you give them your copy to make use of as they will, on the grounds that the underlying work is "in the public domain."

People are talking about this situation if it is a clear case of some narrow branch of copyright law. Those people manifestly are not lawyers. I am not an intellectual property lawyer, but I can tell you that the issue is surely much more complicated than has been presented. First, no legal issue is ever black and white, or clear-cut, without exception, distinction or defense. Second, intellectual property law is among the most complex and abstruse branch of the law. Third, and most importantly, the facts as disclosed in this thread indicate that there are, in addition to possible intellectual property issues, issues of contract and tort law that may be implicated. We don't know the full set of facts. We don't know the full law. I, at least, don't even know what jurisdiction's law may be at issue.

We simply cannot reach the legal conclusions that so many non-lawyers seem to so blithely put forth in this thread (not you, Quantum Sailor).

Hi Laura, The portion of your note i reddened is true but perhaps not relevant to the core discussion here.

To start with paper. Indeed, one does not have the right to take your paper copy without permission for any reason, not though because you have rights to the image but because you own the physical paper. To take your physical paper is to steal.

Digital... no one has right to break into your home and copy something from your hard drive (digital copy) for reasons perhaps obvious. Similarly that person cannot take your hard drive from a public place (even were he to return it) without your ok, because he does not own the physical hard drive.

But, if you give a paper photocopy or a digital scan of said material to someone, you have no legal right to restrict what he does with it, even if you made the first copy/scan, because you do not have ownership of the content, just the media.

The legalities of this, including case law, have been offered at the Fountain Pen Board thread. I invite you to look.

regards

david

[kirchh]

I will observe that in addition to such commercial ventures as Newspapers.com, Ancestry.com, and NewspaperArchive.com, it is common for institutions (universities, etc.) to attach terms restricting reuse to public-domain items held in their collections. These terms include differing fees for the type and venue of requested reuse, restrictions on the extent of the reuse, and limits on the time within which the item can be republished. Note that there is no copyright issue involved.

I'm unaware of any specific legal precedent or barrier that prohibits, voids, or invalidates such agreements.

--Daniel

[david i]

I do invite people to peek at FPB for actual legal case citations.

Interestingly, it appears the entire public domain material from PCA fits on one DVD.

regards

david

[dneal]

Cleverness is not important; constructive discussion is important. "Certain ethical theories" are not being examined; your personal opinion of the ethics of the issue are what I am exploring.

You'd previously said you had an ethical objection to the PCA's selling access to public domain documents. You now say you have no ethical objection to that practice. Your claim that your current stance only applies "generally" does not illuminate how you can hold both positions simultaneously. In what way did your earlier statement not fall under your current position that generally, you have no ethical objection to the PCA selling them via a membership mandatory to viewing?

--Daniel

Personally, I don't have an ethical issue with it. "When it comes down to brass tacks" (i.e.: if you want to get technical with certain ethical theories) it isn't the most ethical thing to be doing in the first place. There is absolutely no contradiction between having an opinion and recognizing that there are competing arguments.

Honestly, you don't seem to be interested in constructive discussion. You seem to be interested in "winning", with your fixation on semantics and disingenuous manipulation and misrepresentation of my posts (which you've done consistently).

I'm left with little alternative but to follow the advice from your sig-tag, in toto.

Indeed and as you suggest, those who obsess with winning tend to get pretty kvetchy when they can't. You have observed that in a fellow here. Meanwhile of course you are correct that no one has any rights to restrict distribution of the fountain pen public domain material we discuss. As with the threat at FPB, this has been enlightening.

Ironically, many electrons could have been saved if one had simply read an earlier response (#27, I believe, in response to a post of yours)


Honestly, I don't have a problem with PCA offering the documents either. I do recognize that once they attempt to assume the high moral ground, that their position (strictly speaking) is shaky.

--edit--

It is also interesting to note that the individual felt it necessary to change their sig-tag to obfuscate my point of following the "advice" it gave. That advice, for posterity, was essentially to not engage toxic people. "Petty" would perhaps be more appropriate than "toxic".

[david i]

It has been said that frequent changes of signature in setting of coping with losing positions on message boards, are a sign of emotional instability. Is that true?

regards

david

[kirchh]

Cleverness is not important; constructive discussion is important. "Certain ethical theories" are not being examined; your personal opinion of the ethics of the issue are what I am exploring.

You'd previously said you had an ethical objection to the PCA's selling access to public domain documents. You now say you have no ethical objection to that practice. Your claim that your current stance only applies "generally" does not illuminate how you can hold both positions simultaneously. In what way did your earlier statement not fall under your current position that generally, you have no ethical objection to the PCA selling them via a membership mandatory to viewing?

--Daniel

Personally, I don't have an ethical issue with it. "When it comes down to brass tacks" (i.e.: if you want to get technical with certain ethical theories) it isn't the most ethical thing to be doing in the first place. There is absolutely no contradiction between having an opinion and recognizing that there are competing arguments.

Honestly, you don't seem to be interested in constructive discussion. You seem to be interested in "winning", with your fixation on semantics and disingenuous manipulation and misrepresentation of my posts (which you've done consistently).

I'm left with little alternative but to follow the advice from your sig-tag, in toto.

Indeed and as you suggest, those who obsess with winning tend to get pretty kvetchy when they can't. You have observed that in a fellow here. Meanwhile of course you are correct that no one has any rights to restrict distribution of the fountain pen public domain material we discuss. As with the threat at FPB, this has been enlightening.

Ironically, many electrons could have been saved if one had simply read an earlier response (#27, I believe, in response to a post of yours)


Honestly, I don't have a problem with PCA offering the documents either. I do recognize that once they attempt to assume the high moral ground, that their position (strictly speaking) is shaky.

Your position needed clarification, because you'd said


...it wasn't the most ethical thing to be doing in the first place. Get past that objection and maybe I would care about what happened thereafter.

We now know that the objection you refer to was not your own (it resulted from applying some ethical theory to which you do not adhere in this case). Therefore, it did not have to be "gotten past" in order for you to care about what happened thereafter. It follows that you may now care about what happened thereafter.

If I say that I am considering spending a week at the library and making a set of copies of a substantial quantity of interesting public-domain items in which you have an interest (but not the time or resources to easily copy on your own), and I propose to you that I will sell to you a copy of my set of copies for a fee, would you find my proposal unethical?

--Daniel

[kirchh]

I will add that companies such as LexisNexis also impose significant restrictions on the use of public-domain materials accessed through their services. I'm not aware of any legal finding or precedent that renders all those terms illegal or otherwise void.

--Daniel

[david i]

Back to core points. I cheerfully note that there are no digital rights owned by any creator of a digital copy of a public domain works. "Reproductions" in this context is an unfortunately ambiguous term. The creator of a photocopy of a public domain work has the right to the few pieces of paper in his hand, not because he has any rights to the image, but because he owns... the physical paper. One may not take another person's 8 sheets of paper without his permission. To do so would be to steal. However, no one owns a digital copy of a public domain work. Once it is accessed it may be legally distributed at will. Nothing has been stolen, as any current possessor of the digital information has no claim to it.

I note that while no one has an obligation to distribute a digital copy in his possession of a public domain work free or otherwise (what does "for free" mean?), no one-- including he who copied first the public domain work-- can prevent others from disseminating further copies.

fun stuff.

-d

[david i]

Putting aside issues of enforceability, did the PCA last year have a signed agreement with members about subsequent use of public domain materials?

I notice the agreement placed now for newly joining members is not dated, and I note that Ron Zorn discussed with me two weeks ago a plan to implement (in the future) such a policy.

regards

david

[david i]

It has been said that frequent changes of signature in setting of coping with losing positions on message boards, are a sign of emotional instability. Is that true?

regards

david

[david i]

BTW, for people looking in on this thread, I do invite you to the new (and still rough) home website for the new pen magazine Fountain Pen Journal, also hosting The Black Pen Society.

http://www.fountainpenjournal.com

regards

David

[Jon Szanto]

It has been said that frequent changes of signature in setting of coping with losing positions on message boards, are a sign of emotional instability. Is that true?
No more so than continually reposting the exact same text.

In general, I expect better.

[Laura N]

Interesting but irrelevant, as we are not discussing the practice of attempting to copyright public-domain materials.


As for the morality of taking it and posting it somewhere else, that's a gray area that one could stand on both sides of. I don't really see why there's a big fuss about posting public domain documents, if you're about the dissemination of knowledge for knowledge sake then who cares where it goes. If on the other hand you're trying to profit off of public domain information that should be out there for free you may find yourself on the wrong side of morality as well.

Embedded misconception here. "Public domain" does not mean "should be out there for free." Copyright gives the exclusive right to make copies, and thus profit, to the author (or designee, etc.). Once copyright terminates, any party may make copies, and thus profit, without constraint of copyright law. It has nothing to do with things being free.

I'm surprised how widespread this misconception is.

--Daniel

Public domain means that you can use the information for free without paying royalties. For example i can go and make a copy of the music for Beethoven's 9th without having to go pay someone for making it, however I can not prevent others from making a copy, nor prevent them from copying mine unless I attain a copyright on the work that I did. Photo copying or scanning is not original work that a copyright is applicable to. Public domain is by definition able to be used for free. If they are trying to claim control, hence standing for legal recourse, for dissemination of public domain information they are in fact trying to copyright that material. Even if it is just a digital copy of that material.

You are free to attempt to make a profit off of anything that is legally available. But if you notice all the public domain books in stores like Barnes and Nobles and Amazon are not the same copy. I imagine there is even some kind of copyright on the cover art etc. When the issue of legality is brought up about posting copies this is exactly the purview of copyright law. Without that you have no standing anyway and the argument is invalid. You, me, the PCA, no one owns intellectual property without copyright and therefore has no standing to argue the placement of said material anywhere. If the claim is that they own it then they had better have something to back up that they own it, a scan of a public domain document is not something that is open for legal issues in my understanding.

Again all from what I've gathered and only my opinion.

I appreciate your Post 53, and I certainly thank you for attempting to add light, rather than heat to this discussion. However, the part I have bolded here is not quite correct. Once you make a copy of that symphony, that copy is your property, and you can absolutely restrict what people can do with it. You do not have to make it available to others to copy or use. This is not a question of copyright law. You own your copy. You have property law rights in that. No one could knock on your door and insist you give them your copy to make use of as they will, on the grounds that the underlying work is "in the public domain."

People are talking about this situation if it is a clear case of some narrow branch of copyright law. Those people manifestly are not lawyers. I am not an intellectual property lawyer, but I can tell you that the issue is surely much more complicated than has been presented. First, no legal issue is ever black and white, or clear-cut, without exception, distinction or defense. Second, intellectual property law is among the most complex and abstruse branch of the law. Third, and most importantly, the facts as disclosed in this thread indicate that there are, in addition to possible intellectual property issues, issues of contract and tort law that may be implicated. We don't know the full set of facts. We don't know the full law. I, at least, don't even know what jurisdiction's law may be at issue.

We simply cannot reach the legal conclusions that so many non-lawyers seem to so blithely put forth in this thread (not you, Quantum Sailor).

Hi Laura, The portion of your note i reddened is true but perhaps not relevant to the core discussion here.

To start with paper. Indeed, one does not have the right to take your paper copy without permission for any reason, not though because you have rights to the image but because you own the physical paper. To take your physical paper is to steal.

Digital... no one has right to break into your home and copy something from your hard drive (digital copy) for reasons perhaps obvious. Similarly that person cannot take your hard drive from a public place (even were he to return it) without your ok, because he does not own the physical hard drive.

But, if you give a paper photocopy or a digital scan of said material to someone, you have no legal right to restrict what he does with it, even if you made the first copy/scan, because you do not have ownership of the content, just the media.

The legalities of this, including case law, have been offered at the Fountain Pen Board thread. I invite you to look.

regards

david

1. Yours is a different issue than I was discussing.

2. Re this different issue, I do not know whether what you say is true. I do suspect that things may not be as absolute as your language suggests. In fact ... well, never mind. I am content to leave this entirely unexplored. I am not involved in this matter. And I don't think the copyright status of digital files is the main legal issue here. I think it's almost a distraction.

3. You say you are a doctor. I therefore presume you are not also a practicing intellectual property lawyer. (Me neither.) Let me urge you (and everyone reading this) not to take legal advice off the internet. Supposed case law citations notwithstanding. Nobody should think they ever are getting "the answer" to a legal question on an internet forum. No lawyer will provide specific legal advice on the internet. It is not ethical. It is not smart. No lawyer in his or her right mind would provide specific legal advice outside a lawyer-client relationship. No lawyer can provide any proper legal advice absent analysis of applicable law to specific facts. Neither the governing law nor the facts are known here. To read a thread on the internet and conclude that the law is X? That is just not a good idea.

I am sorry to be blunt. But would you suggest people take my medical advice? (No, I'm not a doctor. But I've surfed the internet, read a book or two, and over the years probably watched a few episodes of House.) It's possible that my particular medical advice would be sound, as may be the legal conclusions you propound. However, people would be well advised to take either with a grain of salt, I think.

4. You seem to enjoy arguing. I don't. So let's just remain friendly non-combatants. I'm sure everyone who's said anything has a good point.

[david i]

It has been said that frequent changes of signature in setting of coping with losing positions on message boards, are a sign of emotional instability. Is that true?
No more so than continually reposting the exact same text.

In general, I expect better.

Straw Man.

regards

d

[HughC]

Interesting but irrelevant, as we are not discussing the practice of attempting to copyright public-domain materials.


As for the morality of taking it and posting it somewhere else, that's a gray area that one could stand on both sides of. I don't really see why there's a big fuss about posting public domain documents, if you're about the dissemination of knowledge for knowledge sake then who cares where it goes. If on the other hand you're trying to profit off of public domain information that should be out there for free you may find yourself on the wrong side of morality as well.

Embedded misconception here. "Public domain" does not mean "should be out there for free." Copyright gives the exclusive right to make copies, and thus profit, to the author (or designee, etc.). Once copyright terminates, any party may make copies, and thus profit, without constraint of copyright law. It has nothing to do with things being free.

I'm surprised how widespread this misconception is.

--Daniel

Public domain means that you can use the information for free without paying royalties. For example i can go and make a copy of the music for Beethoven's 9th without having to go pay someone for making it, however I can not prevent others from making a copy, nor prevent them from copying mine unless I attain a copyright on the work that I did. Photo copying or scanning is not original work that a copyright is applicable to. Public domain is by definition able to be used for free. If they are trying to claim control, hence standing for legal recourse, for dissemination of public domain information they are in fact trying to copyright that material. Even if it is just a digital copy of that material.

You are free to attempt to make a profit off of anything that is legally available. But if you notice all the public domain books in stores like Barnes and Nobles and Amazon are not the same copy. I imagine there is even some kind of copyright on the cover art etc. When the issue of legality is brought up about posting copies this is exactly the purview of copyright law. Without that you have no standing anyway and the argument is invalid. You, me, the PCA, no one owns intellectual property without copyright and therefore has no standing to argue the placement of said material anywhere. If the claim is that they own it then they had better have something to back up that they own it, a scan of a public domain document is not something that is open for legal issues in my understanding.

Again all from what I've gathered and only my opinion.

I appreciate your Post 53, and I certainly thank you for attempting to add light, rather than heat to this discussion. However, the part I have bolded here is not quite correct. Once you make a copy of that symphony, that copy is your property, and you can absolutely restrict what people can do with it. You do not have to make it available to others to copy or use. This is not a question of copyright law. You own your copy. You have property law rights in that. No one could knock on your door and insist you give them your copy to make use of as they will, on the grounds that the underlying work is "in the public domain."

People are talking about this situation as if it is a clear case of some narrow branch of copyright law. Those people manifestly are not lawyers. I am not an intellectual property lawyer, but I can tell you that the issue is surely much more complicated than has been presented. First, no legal issue is ever black and white, or clear-cut, without exception, distinction or defense. Second, intellectual property law is among the most complex and abstruse branches of the law. Third, and most importantly, the facts as disclosed in this thread indicate that there are, in addition to possible intellectual property issues, issues of contract and tort law that may be implicated. We don't know the full set of facts. We don't know the full law. I, at least, don't even know what jurisdiction's law may be at issue.

We simply cannot reach the legal conclusions that so many non-lawyers seem to so blithely put forth in this thread (not you, Quantum Sailor).

With all due respect this discussion has nothing to do with copyright, therefor "intellectual property" isn't an issue. That's probably the one point everyone agrees on. The issue now seems to be can, in this case, PCA post public domain documents online with terms and conditions that try to limit the dissemination of public domain documents.

Regards
Hugh

[HughC]

This argument is in line with your previous example of copying music -- it's expensive to litigate and maybe difficult to identify those who have engaged in the offending act. I understand those points, though I was not discussing those practicalities, but rather the rights themselves, which are a distinct issue.



No, you're misreading what I wrote. What I suggest amounts to trying to control instantiations of reproductions of public domain works, not the works themselves. I guess I have to repeat this: I am not suggesting that by entering into an agreement with a person who wishes to view a reproduction that I have made of a public domain work, I can therefore try to control the work itself. If a person agrees to view a reproduction that I have created of a catalog on condition that they do not disseminate it further, I am not preventing him or her from disseminating a copy of the catalog that they obtain from another source, or that he or she creates him/herself. I am not exerting control over the public domain work, any more than I would be by simply not showing anyone my copy at all.

Hardly worth arguing over. To be able to set conditions and enforce them legally you would need to demonstrate an ownership of said item (being content) as well as a loss by the action. It's hard to argue you've been wronged if there's no loss and you don't "own" the content.

Here you are getting into a specific legal question -- whether, to enforce a contract freely entered into by two parties and then violated by one of them, there needs to be a showing of ownership of the content of the works at issue. I understand that this is your opinion on this legal question, but that you don't have (or at least have not presented) any references that support this opinion.

The question of harm or loss is yet another matter, which would bear primarily on any award; I believe a reasonable showing can be made on this in the general case of the violation of a restriction on reuse of an item for which a fee is charged, and you believe that it cannot. We can agree to disagree.



Again, you are confusing copyright with the right to propose agreements that have terms for viewing reproductions of a public-domain work.Again, you are confusing the violation of a copyright with the violation of the terms of a contract freely entered into. Now, you may also believe that terms of use such as those at the above-named sites are illegal, but you haven't provided any support for such a claim.

Not at all. What I'm saying if the T.& C. are broken they're basically unenforceable. I'm not saying they're illegal ( how you came up with that beats me) just useless.

Again, I gather you mean such terms are unenforceable in the same way that you will not be "chased" and prosecuted for copying a music CD. That is, it is unlikely that a particular violator will be identified and successfully sued or prosecuted. That may be, but it is a distinct issue from that of the legality of such terms.



This is a completely different argument. You now seem to be saying not that the rights don't exist -- via copyright or contract -- but that it's hard to catch violators and expensive to litigate. But that's not the issue under discussion.

Of course it's the issue !! For it be legal it has to be enforceable under whatever jurisdiction is involved. One needs to consider the costs before action versus the chance of success, in the PCA instance it's a no brainer that action would cost more than it gains with little chance of winning...hence the issue becomes a "non issue" effectively voiding any T.& Cs. That's the reality of it.

Again, here you contend that it would be prohibitively expensive to litigate or prosecute violators, just as it often is with those who copy or redistribute music without permission, which effectively voids the protections present for music publishers, as you've explained. As noted, that's not the point I'm addressing.



Again, this gets back to your assertion that as a matter of law, one cannot impose via contract any restrictions on redistribution of reproductions of public-domain works. I haven't seen any citations that support this specific claim, but I would be interested to learn of some.

Again it's enforceability. I've already addressed this earlier. There's probably not much point in looking at this further unless you have something specific to "toss" around.

Thanks for clarifying that. I now understand that you are not offering an opinion on the legality of such terms, but on the practicalities of pursuing violators, parallel to the situation with the copying of digital music.

--Daniel

Hi Daniel

I think we've just about done the "full circle" on this and still come back to the key question "can you limit the use of public domain documents with terms and conditions?". I believe you can't and you believe you can. As to examples either way I can find none that support either view ( in a very casual look btw). I accept you'd like a clear black or white answer rather than the practical view. I consider the PCA issue as ethical and you legal. About the one thing that is in agreement with everyone is that copyright isn't an issue!! I can add nothing to what I've already said but I'm impressed by the amount of effort you've put into this topic!!

Regards
Hugh

[Jon Szanto]

Straw Man.
Wrong. Bye.

[david i]

Straw Man.
Wrong. Bye.


Right. Hello?

An association game?

In any case, likely won't be online much the next day or so, d/t plans at resort. This thread, along with Jon Veley's imaginings over at FPB, certainly have sowed the seeds for dissemination of public info.

More later.

regards

d

[david i]

Interesting but irrelevant, as we are not discussing the practice of attempting to copyright public-domain materials.


As for the morality of taking it and posting it somewhere else, that's a gray area that one could stand on both sides of. I don't really see why there's a big fuss about posting public domain documents, if you're about the dissemination of knowledge for knowledge sake then who cares where it goes. If on the other hand you're trying to profit off of public domain information that should be out there for free you may find yourself on the wrong side of morality as well.

Embedded misconception here. "Public domain" does not mean "should be out there for free." Copyright gives the exclusive right to make copies, and thus profit, to the author (or designee, etc.). Once copyright terminates, any party may make copies, and thus profit, without constraint of copyright law. It has nothing to do with things being free.

I'm surprised how widespread this misconception is.

--Daniel

Public domain means that you can use the information for free without paying royalties. For example i can go and make a copy of the music for Beethoven's 9th without having to go pay someone for making it, however I can not prevent others from making a copy, nor prevent them from copying mine unless I attain a copyright on the work that I did. Photo copying or scanning is not original work that a copyright is applicable to. Public domain is by definition able to be used for free. If they are trying to claim control, hence standing for legal recourse, for dissemination of public domain information they are in fact trying to copyright that material. Even if it is just a digital copy of that material.

You are free to attempt to make a profit off of anything that is legally available. But if you notice all the public domain books in stores like Barnes and Nobles and Amazon are not the same copy. I imagine there is even some kind of copyright on the cover art etc. When the issue of legality is brought up about posting copies this is exactly the purview of copyright law. Without that you have no standing anyway and the argument is invalid. You, me, the PCA, no one owns intellectual property without copyright and therefore has no standing to argue the placement of said material anywhere. If the claim is that they own it then they had better have something to back up that they own it, a scan of a public domain document is not something that is open for legal issues in my understanding.

Again all from what I've gathered and only my opinion.

I appreciate your Post 53, and I certainly thank you for attempting to add light, rather than heat to this discussion. However, the part I have bolded here is not quite correct. Once you make a copy of that symphony, that copy is your property, and you can absolutely restrict what people can do with it. You do not have to make it available to others to copy or use. This is not a question of copyright law. You own your copy. You have property law rights in that. No one could knock on your door and insist you give them your copy to make use of as they will, on the grounds that the underlying work is "in the public domain."

People are talking about this situation as if it is a clear case of some narrow branch of copyright law. Those people manifestly are not lawyers. I am not an intellectual property lawyer, but I can tell you that the issue is surely much more complicated than has been presented. First, no legal issue is ever black and white, or clear-cut, without exception, distinction or defense. Second, intellectual property law is among the most complex and abstruse branches of the law. Third, and most importantly, the facts as disclosed in this thread indicate that there are, in addition to possible intellectual property issues, issues of contract and tort law that may be implicated. We don't know the full set of facts. We don't know the full law. I, at least, don't even know what jurisdiction's law may be at issue.

We simply cannot reach the legal conclusions that so many non-lawyers seem to so blithely put forth in this thread (not you, Quantum Sailor).

With all due respect this discussion has nothing to do with copyright, therefor "intellectual property" isn't an issue. That's probably the one point everyone agrees on. The issue now seems to be can, in this case, PCA post public domain documents online with terms and conditions that try to limit the dissemination of public domain documents.

Regards
Hugh


Actually, I suspect they were long posted by PCA without terms and conditions, though either way the game theory is most interesting.

regards

david

[kirchh]

Hi Daniel

I think we've just about done the "full circle" on this and still come back to the key question "can you limit the use of public domain documents with terms and conditions?". I believe you can't and you believe you can. As to examples either way I can find none that support either view ( in a very casual look btw). I accept you'd like a clear black or white answer rather than the practical view. I consider the PCA issue as ethical and you legal. About the one thing that is in agreement with everyone is that copyright isn't an issue!! I can add nothing to what I've already said but I'm impressed by the amount of effort you've put into this topic!!

Regards
Hugh

Hi Hugh -

I will follow up by noting that, as David Armstrong has likely learned, providers of public-domain works may, via contracts (though not via copyright assertion), impose limitations on use through terms and conditions agreed to by the acquiring/viewing party. That is, rights can be acquired through the mechanism of contracts; those rights may include limitations on reuse or redistribution. I will reinforce the point made several times now that these are not rights conferred through a claim of copyright or application of copyright protections; they are rights produced by the execution of a contract between two parties. For public-domain works, this may mean that once such a work is accessed by a party who gains that access by assenting to a contract, the work may not be legally distributed at will, if there is a restriction to the contrary in the contract. The provider, via a contract, can prevent others from disseminating further copies. Once again, this does not involve copyright protections, but rather contracts. Contracts of this sort have been upheld by the courts. I am not aware of this mechanism having been generally rejected by the courts.

--Daniel

[david i]

Interesting but irrelevant, as we are not discussing the practice of attempting to copyright public-domain materials.


As for the morality of taking it and posting it somewhere else, that's a gray area that one could stand on both sides of. I don't really see why there's a big fuss about posting public domain documents, if you're about the dissemination of knowledge for knowledge sake then who cares where it goes. If on the other hand you're trying to profit off of public domain information that should be out there for free you may find yourself on the wrong side of morality as well.

Embedded misconception here. "Public domain" does not mean "should be out there for free." Copyright gives the exclusive right to make copies, and thus profit, to the author (or designee, etc.). Once copyright terminates, any party may make copies, and thus profit, without constraint of copyright law. It has nothing to do with things being free.

I'm surprised how widespread this misconception is.

--Daniel

Public domain means that you can use the information for free without paying royalties. For example i can go and make a copy of the music for Beethoven's 9th without having to go pay someone for making it, however I can not prevent others from making a copy, nor prevent them from copying mine unless I attain a copyright on the work that I did. Photo copying or scanning is not original work that a copyright is applicable to. Public domain is by definition able to be used for free. If they are trying to claim control, hence standing for legal recourse, for dissemination of public domain information they are in fact trying to copyright that material. Even if it is just a digital copy of that material.

You are free to attempt to make a profit off of anything that is legally available. But if you notice all the public domain books in stores like Barnes and Nobles and Amazon are not the same copy. I imagine there is even some kind of copyright on the cover art etc. When the issue of legality is brought up about posting copies this is exactly the purview of copyright law. Without that you have no standing anyway and the argument is invalid. You, me, the PCA, no one owns intellectual property without copyright and therefore has no standing to argue the placement of said material anywhere. If the claim is that they own it then they had better have something to back up that they own it, a scan of a public domain document is not something that is open for legal issues in my understanding.

Again all from what I've gathered and only my opinion.

I appreciate your Post 53, and I certainly thank you for attempting to add light, rather than heat to this discussion. However, the part I have bolded here is not quite correct. Once you make a copy of that symphony, that copy is your property, and you can absolutely restrict what people can do with it. You do not have to make it available to others to copy or use. This is not a question of copyright law. You own your copy. You have property law rights in that. No one could knock on your door and insist you give them your copy to make use of as they will, on the grounds that the underlying work is "in the public domain."

People are talking about this situation if it is a clear case of some narrow branch of copyright law. Those people manifestly are not lawyers. I am not an intellectual property lawyer, but I can tell you that the issue is surely much more complicated than has been presented. First, no legal issue is ever black and white, or clear-cut, without exception, distinction or defense. Second, intellectual property law is among the most complex and abstruse branch of the law. Third, and most importantly, the facts as disclosed in this thread indicate that there are, in addition to possible intellectual property issues, issues of contract and tort law that may be implicated. We don't know the full set of facts. We don't know the full law. I, at least, don't even know what jurisdiction's law may be at issue.

We simply cannot reach the legal conclusions that so many non-lawyers seem to so blithely put forth in this thread (not you, Quantum Sailor).

Hi Laura, The portion of your note i reddened is true but perhaps not relevant to the core discussion here.

To start with paper. Indeed, one does not have the right to take your paper copy without permission for any reason, not though because you have rights to the image but because you own the physical paper. To take your physical paper is to steal.

Digital... no one has right to break into your home and copy something from your hard drive (digital copy) for reasons perhaps obvious. Similarly that person cannot take your hard drive from a public place (even were he to return it) without your ok, because he does not own the physical hard drive.

But, if you give a paper photocopy or a digital scan of said material to someone, you have no legal right to restrict what he does with it, even if you made the first copy/scan, because you do not have ownership of the content, just the media.

The legalities of this, including case law, have been offered at the Fountain Pen Board thread. I invite you to look.

regards

david

1. Yours is a different issue than I was discussing.

2. Re this different issue, I do not know whether what you say is true. I do suspect that things may not be as absolute as your language suggests. In fact ... well, never mind. I am content to leave this entirely unexplored. I am not involved in this matter. And I don't think the copyright status of digital files is the main legal issue here. I think it's almost a distraction.

3. You say you are a doctor. I therefore presume you are not also a practicing intellectual property lawyer. (Me neither.) Let me urge you (and everyone reading this) not to take legal advice off the internet. Supposed case law citations notwithstanding. Nobody should think they ever are getting "the answer" to a legal question on an internet forum. No lawyer will provide specific legal advice on the internet. It is not ethical. It is not smart. No lawyer in his or her right mind would provide specific legal advice outside a lawyer-client relationship. No lawyer can provide any proper legal advice absent analysis of applicable law to specific facts. Neither the governing law nor the facts are known here. To read a thread on the internet and conclude that the law is X? That is just not a good idea.

I am sorry to be blunt. But would you suggest people take my medical advice? (No, I'm not a doctor. But I've surfed the internet, read a book or two, and over the years probably watched a few episodes of House.) It's possible that my particular medical advice would be sound, as may be the legal conclusions you propound. However, people would be well advised to take either with a grain of salt, I think.

4. You seem to enjoy arguing. I don't. So let's just remain friendly non-combatants. I'm sure everyone who's said anything has a good point.


Hi Laura,

One of course can discuss what one wishes, though I observe merely what appears to be the actual issue being debated by most here, not whether one's paper or hard drive containing public domain material may be taken, but whether the public domain info itself can be owned at all. Indeed, in my response to you, I believe I did not cite copyright.

The issue of background/career of course is an irrelevancy, as pretty well no one in any pen thread has offered credentials as a basis for assertion or opinion. We explore notions. Feel free not to participate if your not being a copyright/trademark lawyer leaves you insecure. That said, I have offered links to case citations that were offered over at FPB, that were legal decisions by those who do that sort of thing for a living. Happy to see contrary cases.

No worries being blunt. Blunt is fine. On-target and relevant is even better.

Taking anything on a message board with a grain of salt I always figured was a given.

regards

d

[david i]

The disc might be available very soon.

regards

david

[kirchh]

Other discussions of this topic have focused on whether it is legal to assert copyright ownership on faithful reproductions on public-domain works; some case citations were provided on that subject. However, the discussion here centers not around whether copyright protections can apply to a copy of a public-domain work, but rather on whether rights can be conferred to the holder of a copy of a public domain work through the mechanism of a contract. None of the case citations offered so far bear on that question at all. However, there is a body of case law on that matter, and the current state of the law appears to be that such contracts can confer rights, such as limitations on the distribution of copies of the work. Mazzone, for example, acknowledges this, and makes clear that the setting of terms on the viewing of public-domain works through such contracts does not fall within the scope of the activity he has dubbed copyfraud.

--Daniel

[david i]

Back to core points. I cheerfully note that there are no digital rights owned by any creator of a digital copy of a public domain works. "Reproductions" in this context is an unfortunately ambiguous term. The creator of a photocopy of a public domain work has the right to the few pieces of paper in his hand, not because he has any rights to the image, but because he owns... the physical paper. One may not take another person's 8 sheets of paper without his permission. To do so would be to steal. However, no one owns a digital copy of a public domain work. Once it is accessed it may be legally distributed at will. Nothing has been stolen, as any current possessor of the digital information has no claim to it.

I note that while no one has an obligation to distribute a digital copy in his possession of a public domain work free or otherwise (what does "for free" mean?), no one-- including he who copied first the public domain work-- can prevent others from disseminating further copies.

fun stuff.

Have a good evening.

-d

[kirchh]

For example, in ProCD v. Zeidenberg, The plaintiff's right to impose restrictions on reproduction and distribution of its product, which contained public-domain information, was upheld. ProCD successfully prevented others from disseminating further copies of its work, via a contract entered into between the parties and upheld by Judge Easterbrook. As Mazzone has observed, "ProCD has been enormously influential. A series of cases since the decision have followed judge Easterbrook's logic and upheld agreements giving additional rights to providers of digital content."

--Daniel

[david i]

Dinner was good.

Back to core points. I cheerfully note that there are no digital rights owned by any creator of a digital copy of a public domain works. "Reproductions" in this context is an unfortunately ambiguous term. The creator of a photocopy of a public domain work has the right to the few pieces of paper in his hand, not because he has any rights to the image, but because he owns... the physical paper. One may not take another person's 8 sheets of paper without his permission. To do so would be to steal. However, no one owns a digital copy of a public domain work. Once it is accessed it may be legally distributed at will. Nothing has been stolen, as any current possessor of the digital information has no claim to it.

I note that while no one has an obligation to distribute a digital copy in his possession of a public domain work free or otherwise (what does "for free" mean?), no one-- including he who copied first the public domain work-- can prevent others from disseminating further copies.

fun stuff.

Have a good evening.

-d

[david i]

Cbeck out FPB for more, including the famous Veley Rant.

http://fountainpenboard.com/forum/index.php?/topic/6174-public-domain-pen-documents-now-online/

Regards

-d

[kirchh]

Courts have held that in situations where there are restrictions on the use of public-domain works imposed through an agreement, the assent of the recipient, along with the element of consideration, serve to produce a valid contract and thus render such restrictions on the recipient (or rights asserted by the provider) enforceable.

--Daniel

[kirchh]

Note that those who engage in the legal maneuver of requiring assent with an agreement to prevent dissemination of digital copies of public domain material do not put themselves at risk of committing copyfraud, because there is no improper claim of copyright on the materials. As Mazzone explains, "archives engage in copyfraud by falsely claiming they own a copyright in public domain materials in their collection." He goes on to delineate the difference between copyfraud and the position of an archive that employs an agreement with certain terms that limit use of the materials they offer; he says of one such archive that its "position was different. It did not assert a copyright" on the public-domain materials.

--Daniel

[kirchh]

To summarize my preceding few posts, evidence has been offered that a legal right exists to limit distribution of digital copies of public domain works via the mechanism of contracts (agreements that must be accepted in exchange for access), and evidence has been presented here that those who make digital copies of public domain works in fact have the legal right to limit distribution of those copies by anyone who accepts such terms in exchange for gaining access to the materials. Such attempts legally to control one's digital reproduction of public domain works appear to be permissible and enforceable (though, of course, each case can be considered separately on its specifics).


--Daniel

[david i]

I hear the discs will be out soon.

regards

David

[kirchh]

Here's another explanation of the contract-created rights of control available on public-domain materials (emphases added): "some collection items have restrictions on access and use by virtue of the terms in donation and loan documentation (and... institution-imposed terms of access). The capacity to impose such restrictions typically arises from ownership or control of the physical item, not ownership of copyright (indeed, the work could be in the public domain)." And, "many cultural institutions themselves use contract law when licensing copyright or to mimic the exclusive rights found in copyright when they are not the copyright owner or if the work is in the public domain. For example, a repository may create 'terms of use' on a Web site, or have recipients of copies of collection items sign a user agreement (in effect a contract) that stipulates that they may not further reproduce that work, or give the copy to others, or publicly display the work, without first getting permission of the cultural institution....We should emphasize, again, that the cultural institution’s ability to restrict subsequent use of reproductions provided from its collections is based not on copyright but on the institution’s physical ownership of the material. The cultural institution tells users that they may have access to the physical item, and may receive copies of that item, but only if the users agree to abide to the terms specified by the institution" (Hirtle, et al., Copyright and Cultural Institutions)

--Daniel

[david i]

Back to core points. I cheerfully note that there are no digital rights owned by any creator of a digital copy of a public domain works. "Reproductions" in this context is an unfortunately ambiguous term. The creator of a photocopy of a public domain work has the right to the few pieces of paper in his hand, not because he has any rights to the image, but because he owns... the physical paper. One may not take another person's 8 sheets of paper without his permission. To do so would be to steal. However, no one owns a digital copy of a public domain work. Once it is accessed it may be legally distributed at will. Nothing has been stolen, as any current possessor of the digital information has no claim to it.

I note that while no one has an obligation to distribute a digital copy in his possession of a public domain work free or otherwise (what does "for free" mean?), no one-- including he who copied first the public domain work-- can prevent others from disseminating further copies.

fun stuff.

Have a good evening.

-d

[kirchh]

In the ProCD case, the defendant, who had disseminated further copies of the copy of the work purchased from ProCD, made the claim that ProCD could not prevent others from disseminating further copies because the content was in the public domain.

That claim was rejected by Judge Easterbrook, who ruled that the contract between the parties prevented the defendant from disseminating further copies. The fact that the content was public domain did not invalidate that contract.

--Daniel

[mhosea]

In the ProCD case, the defendant, who had disseminated further copies of the copy of the work purchased from ProCD, made the claim that ProCD could not prevent others from disseminating further copies because the content was in the public domain.

That claim was rejected by Judge Easterbrook, who ruled that the contract between the parties prevented the defendant from disseminating further copies. The fact that the content was public domain did not invalidate that contract.


I joined the PCA just last month in large part to gain access to this library, so I'm not exactly pleased to see it out there for free. Nevertheless, I've been trying to follow the legal debate with an open mind. Zeiderberg was ultimately ruled to have been constrained by the license agreement of the work. It's not clear to me, however, how that case would have affected subsequent use. I gather that Zeiderberg was charging a fee, and so it was perhaps unlikely that anyone would have obtained anything more than "excerpts" from the work, but suppose for the sake of argument that he had been giving it away for free and someone else had downloaded the entire thing and began distributing it themselves for free. Zeiderberg would have been forced to desist by the court because he had entered a contract with ProCD not to distribute the work, but what basis could the court have used to prevent this other party from further dissemination? While one might point to a license agreement and sue the uploader of this information (if one but knew who to sue), it isn't clear to me what legal force could be brought to bear to change the status quo in this matter. Perhaps monetary damages, if they can be proven, can be extracted from the individual(s) responsible, but it seems to me that as regards the content itself, the horse has left the barn.

[kirchh]

In the ProCD case, the defendant, who had disseminated further copies of the copy of the work purchased from ProCD, made the claim that ProCD could not prevent others from disseminating further copies because the content was in the public domain.

That claim was rejected by Judge Easterbrook, who ruled that the contract between the parties prevented the defendant from disseminating further copies. The fact that the content was public domain did not invalidate that contract.


I joined the PCA just last month in large part to gain access to this library, so I'm not exactly pleased to see it out there for free. Nevertheless, I've been trying to follow the legal debate with an open mind. Zeiderberg was ultimately ruled to have been constrained by the license agreement of the work. It's not clear to me, however, how that case would have affected subsequent use. I gather that Zeiderberg was charging a fee, and so it was perhaps unlikely that anyone would have obtained anything more than "excerpts" from the work, but suppose for the sake of argument that he had been giving it away for free and someone else had downloaded the entire thing and began distributing it themselves for free. Zeiderberg would have been forced to desist by the court because he had entered a contract with ProCD not to distribute the work, but what basis could the court have used to prevent this other party from further dissemination? While one might point to a license agreement and sue the uploader of this information (if one but knew who to sue), it isn't clear to me what legal force could be brought to bear to change the status quo in this matter. Perhaps monetary damages, if they can be proven, can be extracted from the individual(s) responsible, but it seems to me that as regards the content itself, the horse has left the barn.

More later on this, but I believe your analysis is generally accurate, as it appears the only issue is that of breach of contract by one of the two parties to that contract.

--Daniel

[david i]

Back to core points. I cheerfully note that there are no digital rights owned by any creator of a digital copy of a public domain works. "Reproductions" in this context is an unfortunately ambiguous term. The creator of a photocopy of a public domain work has the right to the few pieces of paper in his hand, not because he has any rights to the image, but because he owns... the physical paper. One may not take another person's 8 sheets of paper without his permission. To do so would be to steal. However, no one owns a digital copy of a public domain work. Once it is accessed it may be legally distributed at will. Nothing has been stolen, as any current possessor of the digital information has no claim to it.

I note that while no one has an obligation to distribute a digital copy in his possession of a public domain work free or otherwise (what does "for free" mean?), no one-- including he who copied first the public domain work-- can prevent others from disseminating further copies.

fun stuff.

Have a good evening.

-d

[kirchh]

In the ProCD case, the defendant, who had disseminated further copies of the copy of the work purchased from ProCD, made the claim that ProCD could not prevent others from disseminating further copies because the content was in the public domain.

That claim was rejected by Judge Easterbrook, who ruled that the contract between the parties prevented the defendant from disseminating further copies. The fact that the content was public domain did not invalidate that contract.


I joined the PCA just last month in large part to gain access to this library, so I'm not exactly pleased to see it out there for free. Nevertheless, I've been trying to follow the legal debate with an open mind. Zeiderberg was ultimately ruled to have been constrained by the license agreement of the work. It's not clear to me, however, how that case would have affected subsequent use. I gather that Zeiderberg was charging a fee, and so it was perhaps unlikely that anyone would have obtained anything more than "excerpts" from the work, but suppose for the sake of argument that he had been giving it away for free and someone else had downloaded the entire thing and began distributing it themselves for free. Zeiderberg would have been forced to desist by the court because he had entered a contract with ProCD not to distribute the work, but what basis could the court have used to prevent this other party from further dissemination? While one might point to a license agreement and sue the uploader of this information (if one but knew who to sue), it isn't clear to me what legal force could be brought to bear to change the status quo in this matter. Perhaps monetary damages, if they can be proven, can be extracted from the individual(s) responsible, but it seems to me that as regards the content itself, the horse has left the barn.

Continuing my response to this, as Hirtle, et al, explain, "Assuming that a cultural institution specified in its agreements that there could be no subsequent reuse of reproductions provided by the institution to users, the institution could bring legal action against any user who reproduced and distributed copies provided to that user. The institution could not, however, bring legal action against any third party who may have gotten a copy of the reproduction and further reproduced it: there is no binding legal agreement between the institution and the third party."

This appears to confirm your speculation.

--Daniel

[david i]

Back to core points. I cheerfully note that there are no digital rights owned by any creator of a digital copy of a public domain works. "Reproductions" in this context is an unfortunately ambiguous term. The creator of a photocopy of a public domain work has the right to the few pieces of paper in his hand, not because he has any rights to the image, but because he owns... the physical paper. One may not take another person's 8 sheets of paper without his permission. To do so would be to steal. However, no one owns a digital copy of a public domain work. Once it is accessed it may be legally distributed at will. Nothing has been stolen, as any current possessor of the digital information has no claim to it.

I note that while no one has an obligation to distribute a digital copy in his possession of a public domain work free or otherwise (what does "for free" mean?), no one-- including he who copied first the public domain work-- can prevent others from disseminating further copies.

fun stuff.

Have a good evening.

-d

[HughC]

In the ProCD case, the defendant, who had disseminated further copies of the copy of the work purchased from ProCD, made the claim that ProCD could not prevent others from disseminating further copies because the content was in the public domain.

That claim was rejected by Judge Easterbrook, who ruled that the contract between the parties prevented the defendant from disseminating further copies. The fact that the content was public domain did not invalidate that contract.

--Daniel

Hi Daniel,

There are significant difference in this example to PCA that I think make it less reliable as a precedence. These include the cost incurred by ProCD in developing their product which had a software component that was probably the point they won on and that it was copied in entirety and offered for sale created a strong financial reason, as in most cases money was the driver. In the ProCD case, which common sense tells us what the result should be, to make his judgement it would appear that the public domain content had to be addressed as part of finding in their favour and to address the core software licensing issue. In PCAs case there is no software, no financial loss, no attempt to sell the PD documents nor does it have a licence attached (because there's no software) and the scan quality is low. While the ProCD case was important for shrink wrap licensing this is not the case with PCA scans because no software is involved. Again it comes back to enforceability, while an agreement exists on PCA the aim of which is to stop dissemination of public domain documents it may be difficult to enforce mainly because their rights to the documents are the same as everyone's. The argument would be that the T & Cs are void by nature of the documents being public domain and their sole aim was to limit access. Of course the lack of financial incentive makes it highly risky if action failed...a valid issue none the less.

What we need is an example where an agreement that relates to a public domain document that has been upheld that's not complicated by software and like. As I mentioned earlier I wasn't able to find one. At present I'm still inclined to think PCA would struggle to enforce their T & Cs. regardless of me thinking it would be a pointless exercise due to cost v benefit.

Regards
Hugh

[kirchh]

In the ProCD case, the defendant, who had disseminated further copies of the copy of the work purchased from ProCD, made the claim that ProCD could not prevent others from disseminating further copies because the content was in the public domain.

That claim was rejected by Judge Easterbrook, who ruled that the contract between the parties prevented the defendant from disseminating further copies. The fact that the content was public domain did not invalidate that contract.

--Daniel

Hi Daniel,

There are significant difference in this example to PCA that I think make it less reliable as a precedence. These include the cost incurred by ProCD in developing their product which had a software component that was probably the point they won on and that it was copied in entirety and offered for sale created a strong financial reason, as in most cases money was the driver. In the ProCD case, which common sense tells us what the result should be, to make his judgement it would appear that the public domain content had to be addressed as part of finding in their favour and to address the core software licensing issue. In PCAs case there is no software, no financial loss, no attempt to sell the PD documents nor does it have a licence attached (because there's no software) and the scan quality is low. While the ProCD case was important for shrink wrap licensing this is not the case with PCA scans because no software is involved. Again it comes back to enforceability, while an agreement exists on PCA the aim of which is to stop dissemination of public domain documents it may be difficult to enforce mainly because their rights to the documents are the same as everyone's. The argument would be that the T & Cs are void by nature of the documents being public domain and their sole aim was to limit access. Of course the lack of financial incentive makes it highly risky if action failed...a valid issue none the less.

What we need is an example where an agreement that relates to a public domain document that has been upheld that's not complicated by software and like. As I mentioned earlier I wasn't able to find one. At present I'm still inclined to think PCA would struggle to enforce their T & Cs. regardless of me thinking it would be a pointless exercise due to cost v benefit.

Regards
Hugh

I don't think you've read the cited case with care. You write, "The argument would be that the T & Cs are void by nature of the documents being public domain and their sole aim was to limit access." That is the situation in the ProCD case. The content at issue was not software; there was no "core software licensing issue." It was public domain content, and ProCD's aim was to limit access (whether that was the "sole" aim is irrelevant for purposes of this discussion). And the court upheld the contract and ruled in favor of ProCD.

Arguments about the assessment of damages are distinct from the issue of the enforceability of the contract, but you seem to be mixing them together, putting forth the proposition that if, for example, the violator of the contract gave away copies rather than sold them, that somehow bears on the validity of the contract. That's illogical. One issue is whether, as a general proposition, the holder of a digital copy of public domain content can prevent, through a contract, others from disseminating further copies. ProCD showed that they can. A separate issue would be the determination of damages. This maybe straightforward or complicated, the damages de minimus or huge. The injured party can weigh that when deciding whether to litigate. But that has nothing at all to do with whether someone can legally constrain the redistribution of public domain content by using a contract; he can, as this case shows.

You say, "while an agreement exists on PCA the aim of which is to stop dissemination of public domain documents it may be difficult to enforce mainly because their rights to the documents are the same as everyone's." Yet, again, that's precisely the situation that applied in the ProCD case; in fact, Judge Easterbrook specifically addressed this question, because Zeidenberg's rights to the content (again, not "software") were "the same as everyone's" -- but Easterbrook upheld the contract nonetheless, because the fact that the content was in the public domain had no bearing on the validity of the contract between the parties.

--Daniel

[david i]

Back to core points. I cheerfully note that there are no digital rights owned by any creator of a digital copy of a public domain works. "Reproductions" in this context is an unfortunately ambiguous term. The creator of a photocopy of a public domain work has the right to the few pieces of paper in his hand, not because he has any rights to the image, but because he owns... the physical paper. One may not take another person's 8 sheets of paper without his permission. To do so would be to steal. However, no one owns a digital copy of a public domain work. Once it is accessed it may be legally distributed at will. Nothing has been stolen, as any current possessor of the digital information has no claim to it.

I note that while no one has an obligation to distribute a digital copy in his possession of a public domain work free or otherwise (what does "for free" mean?), no one-- including he who copied first the public domain work-- can prevent others from disseminating further copies.

fun stuff.

[kirchh]

These include the cost incurred by ProCD in developing their product which had a software component that was probably the point they won on and that it was copied in entirety and offered for sale...

I want to specifically address this characterization of the case. It is completely incorrect, and I'm not sure what your source is for this claim.

ProCD did not win on the point of their software being "copied in entirety and offered for sale." In fact Zeidenberg didn't copy the software, and didn't offer it for sale. He extracted the public domain content and offered it for sale.

--Daniel

[david i]

Back to core points. I cheerfully note that there are no digital rights owned by any creator of a digital copy of a public domain works. "Reproductions" in this context is an unfortunately ambiguous term. The creator of a photocopy of a public domain work has the right to the few pieces of paper in his hand, not because he has any rights to the image, but because he owns... the physical paper. One may not take another person's 8 sheets of paper without his permission. To do so would be to steal. However, no one owns a digital copy of a public domain work. Once it is accessed it may be legally distributed at will. Nothing has been stolen, as any current possessor of the digital information has no claim to it.

I note that while no one has an obligation to distribute a digital copy in his possession of a public domain work free or otherwise (what does "for free" mean?), no one-- including he who copied first the public domain work-- can prevent others from disseminating further copies.

I hear more will be out soon.

fun stuff.

[kirchh]

Hugh -

Further on your claim regarding the contract not being enforceable because the content is public domain: Zeidenberg made precisely that argument, claiming, per Mazzone, that "even if the license were contractually valid, the Copyright Act preempted its enforcement because it restricted use of un-copyrightable public domain information."

The court rejected that argument even though it agreed the information was public domain, upheld the validity and enforceability of the contract, and enjoined Zeidenberg from further dissemination of his copy of the public domain content he acquired from ProCD.

--Daniel

[david i]

Back to core points. I cheerfully note that there are no digital rights owned by any creator of a digital copy of a public domain works. "Reproductions" in this context is an unfortunately ambiguous term. The creator of a photocopy of a public domain work has the right to the few pieces of paper in his hand, not because he has any rights to the image, but because he owns... the physical paper. One may not take another person's 8 sheets of paper without his permission. To do so would be to steal. However, no one owns a digital copy of a public domain work. Once it is accessed it may be legally distributed at will. Nothing has been stolen, as any current possessor of the digital information has no claim to it.

I note that while no one has an obligation to distribute a digital copy in his possession of a public domain work free or otherwise (what does "for free" mean?), no one-- including he who copied first the public domain work-- can prevent others from disseminating further copies.

fun stuff.

[HughC]

Hugh -

Further on your claim regarding the contract not being enforceable because the content is public domain: Zeidenberg made precisely that argument, claiming, per Mazzone, that "even if the license were contractually valid, the Copyright Act preempted its enforcement because it restricted use of un-copyrightable public domain information."

The court rejected that argument even though it agreed the information was public domain, upheld the validity and enforceability of the contract, and enjoined Zeidenberg from further dissemination of his copy of the public domain content he acquired from ProCD.

--Daniel

Hi Daniel

From the judgement:

[3] The database in SelectPhone (trademark) cost more than $10 million to compile and is expensive to keep current. It is much more valuable to some users than to others. The combination of names, addresses, and sic codes enables manufacturers to compile lists of potential customers. Manufacturers and retailers pay high prices to specialized information intermediaries for such mailing lists; ProCD offers a potentially cheaper alternative. People with nothing to sell could use the database as a substitute for calling long distance information, or as a way to look up old friends who have moved to unknown towns, or just as a electronic substitute for the local phone book. ProCD decided to engage in price discrimination, selling its database to the general public for personal use at a low price (approximately $150 for the set of five discs) while selling information to the trade for a higher price. It has adopted some intermediate strategies too: access to the SelectPhone (trademark) database is available via the America On-line service for the price America Online charges to its clients (approximately $3 per hour), but this service has been tailored to be useful only to the general public.

[4] If ProCD had to recover all of its costs and make a profit by charging a single price - that is, if it could not charge more to commercial users than to the general public - it would have to raise the price substantially over $150. The ensuing reduction in sales would harm consumers who value the information at, say, $200. They get consumer surplus of $50 under the current arrangement but would cease to buy if the price rose substantially. If because of high elasticity of demand in the consumer segment of the market the only way to make a profit turned out to be a price attractive to commercial users alone, then all consumers would lose out - and so would the commercial clients, who would have to pay more for the listings because ProCD could not obtain any contribution toward costs from the consumer market.

[7] Matthew Zeidenberg bought a consumer package of SelectPhone (trademark) in 1994 from a retail outlet in Madison, Wisconsin, but decided to ignore the license. He formed Silken Mountain Web Services, Inc., to resell the information in the SelectPhone (trademark) database. The corporation makes the database available on the Internet to anyone willing to pay its price - which, needless to say, is less than ProCD charges its commercial customers. Zeidenberg has purchased two additional SelectPhone (trademark) packages, each with an updated version of the database, and made the latest information available over the World Wide Web, for a price, through his corporation. ProCD filed this suit seeking an injunction against further dissemination that exceeds the rights specified in the licenses (identical in each of the three packages Zeidenberg purchased). The district court held the licenses ineffectual because their terms do not appear on the outside of the packages. The court added that the second and third licenses stand no different from the first, even though they are identical, because they might have been different, and a purchaser does not agree to - and cannot be bound by - terms that were secret at the time of purchase. 908 F. Supp. at 654.

[17] But are rights created by contract "equivalent to any of the exclusive rights within the general scope of copyright"? Three courts of appeals have answered "no." National Car Rental Systems, Inc. v. Computer Associates International, Inc., 991 F.2d 426, 433 (8th Cir. 1993); Taquino v. Teledyne Monarch Rubber, 893 F.2d 1488, 1501 (5th Cir. 1990); Acorn Structures, Inc. v. Swantz, 846 F.2d 923, 926 (4th Cir. 1988). The district court disagreed with these decisions, 908 F. Supp. at 658, but we think them sound. Rights "equivalent to any of the exclusive rights within the general scope of copyright" are rights established by law - rights that restrict the options of persons who are strangers to the author. Copyright law forbids duplication, public performance, and so on, unless the person wishing to copy or perform the work gets permission; silence means a ban on copying. A copyright is a right against the world. Contracts, by contrast, generally affect only their parties; strangers may do as they please, so contracts do not create "exclusive rights." Someone who found a copy of SelectPhone (trademark) on the street would not be affected by the shrinkwrap license - though the federal copyright laws of their own force would limit the finder's ability to copy or transmit the application program.

[19] A law student uses the LEXIS database, containing public-domain documents, under a contract limiting the results to educational endeavors; may the student resell his access to this database to a law firm from which LEXIS seeks to collect a much higher hourly rate? Suppose ProCD hires a firm to scour the nation for telephone directories, promising to pay $100 for each that ProCD does not already have. The firm locates 100 new directories, which it sends to ProCD with an invoice for $10,000. ProCD incorporates the directories into its database; does it have to pay the bill? Surely yes; Aronson v. Quick Point Pencil Co., 440 U.S. 257 (1979), holds that promises to pay for intellectual property may be enforced even though federal law (in Aronson, the patent law) offers no protection against third-party uses of that property. See also Kennedy v. Wright, 851 F.2d 963 (7th Cir. 1988). But these illustrations are what our case is about. ProCD offers software and data for two prices: one for personal use, a higher price for commercial use. Zeidenberg wants to use the data without paying the seller's price; if the law student and Quick Point Pencil Co. could not do that, neither can Zeidenberg.

[21] Aronson emphasized that enforcement of the contract between Aronson and Quick Point Pencil Company would not withdraw any information from the public domain. That is equally true of the contract between ProCD and Zeidenberg. Everyone remains free to copy and disseminate all 3,000 telephone books that have been incorporated into ProCD's database. Anyone can add sic codes and zip codes. ProCD's rivals have done so. Enforcement of the shrinkwrap license may even make information more readily available, by reducing the price ProCD charges to consumer buyers. To the extent licenses facilitate distribution of object code while concealing the source code (the point of a clause forbidding disassembly), they serve the same procompetitive functions as does the law of trade secrets. Rockwell Graphic Systems, Inc. v. DEV Industries, Inc., 925 F.2d 174, 180 (7th Cir. 1991). Licenses may have other benefits for consumers: many licenses permit users to make extra copies, to use the software on multiple computers, even to incorporate the software into the user's products. But whether a particular license is generous or restrictive, a simple two-party contract is not "equivalent to any of the exclusive rights within the general scope of copyright" and therefore may be enforced.


Zeidenberg lost on purely commercial grounds, he purchased a non commercial version ( had he purchased a commercial version it would have altered the case) when he could have purchased a commercial version. As I've said money is a major factor and driver of this case. I remain doubtful of the value of PCAs t &cs.

Regards
Hugh

[kirchh]

Hugh -

Further on your claim regarding the contract not being enforceable because the content is public domain: Zeidenberg made precisely that argument, claiming, per Mazzone, that "even if the license were contractually valid, the Copyright Act preempted its enforcement because it restricted use of un-copyrightable public domain information."

The court rejected that argument even though it agreed the information was public domain, upheld the validity and enforceability of the contract, and enjoined Zeidenberg from further dissemination of his copy of the public domain content he acquired from ProCD.

--Daniel

Hi Daniel

From the judgement:

[3] The database in SelectPhone (trademark) cost more than $10 million to compile and is expensive to keep current. It is much more valuable to some users than to others. The combination of names, addresses, and sic codes enables manufacturers to compile lists of potential customers. Manufacturers and retailers pay high prices to specialized information intermediaries for such mailing lists; ProCD offers a potentially cheaper alternative. People with nothing to sell could use the database as a substitute for calling long distance information, or as a way to look up old friends who have moved to unknown towns, or just as a electronic substitute for the local phone book. ProCD decided to engage in price discrimination, selling its database to the general public for personal use at a low price (approximately $150 for the set of five discs) while selling information to the trade for a higher price. It has adopted some intermediate strategies too: access to the SelectPhone (trademark) database is available via the America On-line service for the price America Online charges to its clients (approximately $3 per hour), but this service has been tailored to be useful only to the general public.

[4] If ProCD had to recover all of its costs and make a profit by charging a single price - that is, if it could not charge more to commercial users than to the general public - it would have to raise the price substantially over $150. The ensuing reduction in sales would harm consumers who value the information at, say, $200. They get consumer surplus of $50 under the current arrangement but would cease to buy if the price rose substantially. If because of high elasticity of demand in the consumer segment of the market the only way to make a profit turned out to be a price attractive to commercial users alone, then all consumers would lose out - and so would the commercial clients, who would have to pay more for the listings because ProCD could not obtain any contribution toward costs from the consumer market.

[7] Matthew Zeidenberg bought a consumer package of SelectPhone (trademark) in 1994 from a retail outlet in Madison, Wisconsin, but decided to ignore the license. He formed Silken Mountain Web Services, Inc., to resell the information in the SelectPhone (trademark) database. The corporation makes the database available on the Internet to anyone willing to pay its price - which, needless to say, is less than ProCD charges its commercial customers. Zeidenberg has purchased two additional SelectPhone (trademark) packages, each with an updated version of the database, and made the latest information available over the World Wide Web, for a price, through his corporation. ProCD filed this suit seeking an injunction against further dissemination that exceeds the rights specified in the licenses (identical in each of the three packages Zeidenberg purchased). The district court held the licenses ineffectual because their terms do not appear on the outside of the packages. The court added that the second and third licenses stand no different from the first, even though they are identical, because they might have been different, and a purchaser does not agree to - and cannot be bound by - terms that were secret at the time of purchase. 908 F. Supp. at 654.

[17] But are rights created by contract "equivalent to any of the exclusive rights within the general scope of copyright"? Three courts of appeals have answered "no." National Car Rental Systems, Inc. v. Computer Associates International, Inc., 991 F.2d 426, 433 (8th Cir. 1993); Taquino v. Teledyne Monarch Rubber, 893 F.2d 1488, 1501 (5th Cir. 1990); Acorn Structures, Inc. v. Swantz, 846 F.2d 923, 926 (4th Cir. 1988). The district court disagreed with these decisions, 908 F. Supp. at 658, but we think them sound. Rights "equivalent to any of the exclusive rights within the general scope of copyright" are rights established by law - rights that restrict the options of persons who are strangers to the author. Copyright law forbids duplication, public performance, and so on, unless the person wishing to copy or perform the work gets permission; silence means a ban on copying. A copyright is a right against the world. Contracts, by contrast, generally affect only their parties; strangers may do as they please, so contracts do not create "exclusive rights." Someone who found a copy of SelectPhone (trademark) on the street would not be affected by the shrinkwrap license - though the federal copyright laws of their own force would limit the finder's ability to copy or transmit the application program.

[19] A law student uses the LEXIS database, containing public-domain documents, under a contract limiting the results to educational endeavors; may the student resell his access to this database to a law firm from which LEXIS seeks to collect a much higher hourly rate? Suppose ProCD hires a firm to scour the nation for telephone directories, promising to pay $100 for each that ProCD does not already have. The firm locates 100 new directories, which it sends to ProCD with an invoice for $10,000. ProCD incorporates the directories into its database; does it have to pay the bill? Surely yes; Aronson v. Quick Point Pencil Co., 440 U.S. 257 (1979), holds that promises to pay for intellectual property may be enforced even though federal law (in Aronson, the patent law) offers no protection against third-party uses of that property. See also Kennedy v. Wright, 851 F.2d 963 (7th Cir. 1988). But these illustrations are what our case is about. ProCD offers software and data for two prices: one for personal use, a higher price for commercial use. Zeidenberg wants to use the data without paying the seller's price; if the law student and Quick Point Pencil Co. could not do that, neither can Zeidenberg.

[21] Aronson emphasized that enforcement of the contract between Aronson and Quick Point Pencil Company would not withdraw any information from the public domain. That is equally true of the contract between ProCD and Zeidenberg. Everyone remains free to copy and disseminate all 3,000 telephone books that have been incorporated into ProCD's database. Anyone can add sic codes and zip codes. ProCD's rivals have done so. Enforcement of the shrinkwrap license may even make information more readily available, by reducing the price ProCD charges to consumer buyers. To the extent licenses facilitate distribution of object code while concealing the source code (the point of a clause forbidding disassembly), they serve the same procompetitive functions as does the law of trade secrets. Rockwell Graphic Systems, Inc. v. DEV Industries, Inc., 925 F.2d 174, 180 (7th Cir. 1991). Licenses may have other benefits for consumers: many licenses permit users to make extra copies, to use the software on multiple computers, even to incorporate the software into the user's products. But whether a particular license is generous or restrictive, a simple two-party contract is not "equivalent to any of the exclusive rights within the general scope of copyright" and therefore may be enforced.


Zeidenberg lost on purely commercial grounds, he purchased a non commercial version ( had he purchased a commercial version it would have altered the case) when he could have purchased a commercial version. As I've said money is a major factor and driver of this case. I remain doubtful of the value of PCAs t &cs.

Regards
Hugh

Thank you for correcting your earlier assertion that ProCD won because what Zeidenberg copied and distributed was ProCD's "software," as opposed to the content, and also for reiterating what I wrote earlier (http://fpgeeks.com/forum/showthread.php/8112-Public-Domain-Pen-Documents-Now-Online?p=94494&viewfull=1#post94494) in response to mhosea regarding the contract applying only to the parties, not to third parties who did not enter into the contract. Also, this confirms my correction of your claim that "the argument would be that the T & Cs are void by nature of the documents being public domain," as the ruling by Judge Easterbrook makes it clear that this argument fails, and the terms and conditions are valid and enforceable despite the fact that the content is public domain.

Unfortunately, you introduce a new error when you write, "Zeidenberg lost on purely commercial grounds, he purchased a non commercial version ( had he purchased a commercial version it would have altered the case) when he could have purchased a commercial version". Zeidenberg lost because he entered into a contract prohibiting him from redistributing the public domain content in the product he bought, and he violated that contract by redistributing that content. The key principle established by Judge Easterbrook was that a holder of a copy of public domain content can restrict, by use of a contract, an acquirer's dissemination of that content. Obviously, if Zeidenberg had entered into a different contract that permitted the dissemination in which he engaged, he would not have been in violation of the contract. That's a definitional conclusion, and irrelevant.

In line with the precedent established in ProCD, organizations of many kinds, including companies, libraries, universities, and non-profit groups have attached contracts that include restrictions on reuse to public domain information they hold. LexisNexis, Newspapers.com, Princeton University, and the PCA are among those who use the mechanism of a contract to impose limitations on dissemination of public domain content they provide. I have found no reference to any legal rulings that overturn the principle established in ProCD, though I invite you to present some.

--Daniel

[dannzeman]

Back to core points. I cheerfully note that there are no digital rights owned by any creator of a digital copy of a public domain works. "Reproductions" in this context is an unfortunately ambiguous term. The creator of a photocopy of a public domain work has the right to the few pieces of paper in his hand, not because he has any rights to the image, but because he owns... the physical paper. One may not take another person's 8 sheets of paper without his permission. To do so would be to steal. However, no one owns a digital copy of a public domain work. Once it is accessed it may be legally distributed at will. Nothing has been stolen, as any current possessor of the digital information has no claim to it.

I note that while no one has an obligation to distribute a digital copy in his possession of a public domain work free or otherwise (what does "for free" mean?), no one-- including he who copied first the public domain work-- can prevent others from disseminating further copies.

fun stuff.

David, I think those reading this thread have seen your comment by now. Either they're choosing not to respond or they don't understand your point. Perhaps rephrasing it would get the reaction you're looking for and further the conversation.

[kirchh]

...ProCD decided to engage in price discrimination, selling its database to the general public for personal use at a low price (approximately $150 for the set of five discs) while selling information to the trade for a higher price.

. . . .

[7] Matthew Zeidenberg bought a consumer package of SelectPhone (trademark) in 1994 from a retail outlet in Madison, Wisconsin, but decided to ignore the license. He formed Silken Mountain Web Services, Inc., to resell the information in the SelectPhone (trademark) database. The corporation makes the database available on the Internet to anyone willing to pay its price - which, needless to say, is less than ProCD charges its commercial customers.

. . . .

Zeidenberg lost on purely commercial grounds, he purchased a non commercial version ( had he purchased a commercial version it would have altered the case) when he could have purchased a commercial version. As I've said money is a major factor and driver of this case. I remain doubtful of the value of PCAs t &cs.

Regards
Hugh

I want to further correct this error you make. The consumer version and the commercial version of the ProCD product differ only in price, not in redistribution rights, according to the information in the decision (if you have a citation for information to the contrary, please present it). Zeidenberg happens to have bought the consumer version, which was less expensive; he then set up a business that redistributed the content (to as many purchasers as he could attract) for whatever price he set, which could be lower than the price charged by ProCD themselves. There are no facts on the record in the decision that indicate that Ziedenberg would have been permitted to re-sell the content in this manner had he purchased the commercial license, which differed only in price.

--Daniel

[david i]

Back to core points. I cheerfully note that there are no digital rights owned by any creator of a digital copy of a public domain works. "Reproductions" in this context is an unfortunately ambiguous term. The creator of a photocopy of a public domain work has the right to the few pieces of paper in his hand, not because he has any rights to the image, but because he owns... the physical paper. One may not take another person's 8 sheets of paper without his permission. To do so would be to steal. However, no one owns a digital copy of a public domain work. Once it is accessed it may be legally distributed at will. Nothing has been stolen, as any current possessor of the digital information has no claim to it.

I note that while no one has an obligation to distribute a digital copy in his possession of a public domain work free or otherwise (what does "for free" mean?), no one-- including he who copied first the public domain work-- can prevent others from disseminating further copies.

fun stuff.

[dduran]

To be clear: Are you saying that a person or entity who makes a reproduction of a public-domain work has no right to impose conditions for viewing their reproduction, such as the setting of a fee?


I don't think anyone has a problem with someone making a reproduction of a public domain work and then charging for it -- that's not the issue at all. Just red herring.
The main question is, does someone who made a reproduction (just direct reproduction, not rendering any new creative work) can restrict anyone else from making and distributing copies? (copy of a copy).

Here's what:
1. I buy a digitized EXACT photo copy of a catalog (say catalog-copy.pdf)
2. Since the the catalog is under public domain, is there a problem with me redistributing it?
3. If there's an issue with (2), then what's stopping me from copying my file (catalog-copy.pdf) to (catalog-copy-1.pdf).. and poof! I've made my own copy, am I still restricted from distributing that?

We're taking about an exact copy here, not cover song, nor creative rendition, the like.

[kirchh]

To be clear: Are you saying that a person or entity who makes a reproduction of a public-domain work has no right to impose conditions for viewing their reproduction, such as the setting of a fee?


I don't think anyone has a problem with someone making a reproduction of a public domain work and then charging for it -- that's not the issue at all. Just red herring.
The main question is, does someone who made a reproduction (just direct reproduction, not rendering any new creative work) can restrict anyone else from making and distributing copies? (copy of a copy).

Here's what:
1. I buy a digitized EXACT photo copy of a catalog (say catalog-copy.pdf)
2. Since the the catalog is under public domain, is there a problem with me redistributing it?
3. If there's an issue with (2), then what's stopping me from copying my file (catalog-copy.pdf) to (catalog-copy-1.pdf).. and poof! I've made my own copy, am I still restricted from distributing that?

We're taking about an exact copy here, not cover song, nor creative rendition, the like.

It is not illegal under copyright law, but it may violate a contract that you entered into when you received the content. Put simply, if you agreed not to further disseminate the content, but you disseminated the content, you violated the contract you entered into.

--Daniel

[dduran]

Is the contract, that was violated, valid in the first place? To restrict an exact copy of a public domain?
I'm really curious because it's an issue that comes up more frequently (outside FPs) lately and it'll be great if a lawyer can pitch in (of course we assume it'll be different for each country)

Though in any case, the earlier answer addressed my main concern.

[mhosea]

David, I think those reading this thread have seen your comment by now. Either they're choosing not to respond or they don't understand your point. Perhaps rephrasing it would get the reaction you're looking for and further the conversation.

I think his point in repeating it is to emphasize that these are the core points and that they have not been substantially disputed. It seems to be substantially correct, modulo the possibility that a contract might impinge between two parties in a specific case, so maybe he just wants a cookie. Can we find the man a cookie?

[kirchh]

Is the contract, that was violated, valid in the first place? To restrict an exact copy of a public domain?
I'm really curious because it's an issue that comes up more frequently (outside FPs) lately and it'll be great if a lawyer can pitch in (of course we assume it'll be different for each country)

Though in any case, the earlier answer addressed my main concern.

I'm not a lawyer, but I am providing my understanding based on the information I have obtained, and I am also supplying the opinions of some experts on the subject (Mazzone, Hirtle). I have seen no indications that the exactness of the copy is relevant, as the fact that the content is in the public domain does not bear on the validity of the contract. If I allow you to have a copy of a public domain document and you agree not to reproduce it, such a contract can be valid. The reasoning, as I understand it, is that the contract was entered into freely by both parties, there is an element of consideration (you get access to the document I hold in exchange for your agreement not to reproduce it), and the agreement does not impair any third party's right to the public domain content that is contained in the item (no one is prevented from seeking the content elsewhere).

In the ProCD case, the public domain content was purely informational (phone numbers, etc.), not graphical, so the information could be exactly copied by the recipient. But the contract was held valid and the violator was enjoined from disseminating the content.

--Daniel

[kirchh]

...a contract might impinge between two parties in a specific case, ...

Precisely. The holder of a copy of a public domain work can prevent others from disseminating further copies of that work via an agreement with the recipient. That's the basis for the terms of use that apply to various online newspaper (and other document) archives, university archives, LexisNexis, and the PCA library.

--Daniel

[david i]

David, I think those reading this thread have seen your comment by now. Either they're choosing not to respond or they don't understand your point. Perhaps rephrasing it would get the reaction you're looking for and further the conversation.

I think his point in repeating it is to emphasize that these are the core points and that they have not been substantially disputed. It seems to be substantially correct, modulo the possibility that a contract might impinge between two parties in a specific case, so maybe he just wants a cookie. Can we find the man a cookie?

I am partial to cookies. Pepperidge Farm Lido and double choc Milano always work ;)

I also like "cookies" containing 500+ public domain pen catalogues. I was just sent one. That might provide a different sort of chewiness, but I hope we can explore together

Dan Smith's comment is noted. My first response would be that the poke I provide helps keep the big picture here in play. The subsequent responses implicitly acknowledging this would seem to indicate that, though of course I could be wrong. It happens.

I hope those not responding have the intellect to understand. I suspect core points though indeed are subtly acknowledge though by many, if not by those who object, which of course is fine as well.

I'm not looking for any reaction. I'm enjoying the process. Meta-chat can be as interesting or more interesting than the chat, proper. I'm often as interesting in process as in meat.

I will play at rephrasing the pokes here and there.

Meanwhile, I'm told the distribution of public domain information proceeds.

regards

david

[dduran]

[QUOTE=dduran;94591]In the ProCD case, the public domain content was purely informational (phone numbers, etc.), not graphical, so the information could be exactly copied by the recipient. But the contract was held valid and the violator was enjoined from disseminating the content.

Might be dangerous to compare the two since, from what I understand, it's not just the database that's being disputed but there's also software, etc. for that case.
Would be interested to see a precedent on a more simple case (photocopy / digital copy distribution/ etc.) I agree that there's a contract, my curiosity is still on the validity and enforceability of it.

Validity in the sense that the seller has a legal basis to pursue a case, not just an ability to privately resolve it (like remove membership, etc).

[kirchh]

[QUOTE=dduran;94591]In the ProCD case, the public domain content was purely informational (phone numbers, etc.), not graphical, so the information could be exactly copied by the recipient. But the contract was held valid and the violator was enjoined from disseminating the content.

Might be dangerous to compare the two since, from what I understand, it's not just the database that's being disputed but there's also software, etc. for that case.
Would be interested to see a precedent on a more simple case (photocopy / digital copy distribution/ etc.) I agree that there's a contract, my curiosity is still on the validity and enforceability of it.

Validity in the sense that the seller has a legal basis to pursue a case, not just an ability to privately resolve it (like remove membership, etc).

Where in the decision did you see that there was any issue raised by the plaintiff regarding the improper distribution of software? And what's the "etc." to which you refer?

The decision specifically discusses the question of whether the public domain content can have restrictions on reproduction through the mechanism of a contract. Indeed, the defendant used the argument that because the content was public domain, the contract restricting redistribution of the content was not enforceable, and that reasoning was rejected by Judge Easterbrook.

If you see any issue raised in the ProCD case that improper distribution of software was at issue, please provide the relevant passages.

Thanks.

--Daniel

[david i]

So, the distribution of the public domain material, to which no one holds digital rights, should commence soon.

Regards

David

[HughC]

aholder of a copy of public domain content can restrict, by use of a contract, an acquirer's dissemination of that content.[/B] Obviously, if Zeidenberg had entered into a different contract that permitted the dissemination in which he engaged, he would not have been in violation of the contract. That's a definitional conclusion, and irrelevant.

In line with the precedent established in ProCD, organizations of many kinds, including companies, libraries, universities, and non-profit groups have attached contracts that include restrictions on reuse to public domain information they hold. LexisNexis, Newspapers.com, Princeton University, and the PCA are among those who use the mechanism of a contract to impose limitations on dissemination of public domain content they provide. I have found no reference to any legal rulings that overturn the principle established in ProCD, though I invite you to present some.

--Daniel

This makes your argument rather difficult "Everyone remains free to copy and disseminate all 3,000 telephone books that have been incorporated into ProCD's database. "

The district court failed to address the public domain issue which allowed reversal. That being the white pages are public domain.

"a simple two-party contract is not "equivalent to any of the exclusive rights within the general scope of copyright" and therefore may be enforced." Something three appeal courts disagree with.

The sites you list vary considerably from PCA . Read : This is strangely for newspapers .com....btw...as linked at the bottom of the web page...

The Content may be downloaded onto your computer or device through the use of authorized Ancestry software. When downloaded, the Content remains subject to the limited use license contained in this Agreement. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You may use the software provided on the Websites only while online and may not download, copy, reuse or distribute that software, except where it is clearly stated that such software is made available for offline use. Bots, crawlers, spiders, data miners, scraping and any other automatic access tool are expressly prohibited. You agree not to circumvent, disable or otherwise interfere with security related features of the Websites or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Websites or Services or the Content therein.

Ancestry does not claim an exclusive right to images already in the public domain that it has converted into a digital format. However, the Websites contain images or documents that are protected by copyrights or that, even if in the public domain, are subject to restrictions on reuse. By agreeing to these Terms and Conditions, you agree to not reuse these images or documents except that you may reuse public domain images so long as you only use small portions of the images or documents for personal use. If you republish public domain images, you agree to credit the relevant Ancestry Website as the source of the digital image, unless additional specific restrictions apply. If you wish to republish more than a small portion of the images or documents from any of the Websites, you agree to obtain prior written permission from us.

Which really says very little...ie what is a small portion? Personal use? . Practically it doesn't mean much. Enforceable as to public domain documents...unlikely.

Add to this the multitude of reasons that Easterbrooks judgement is doubtful in a number of areas simply point to it as being an unreliable precedence. (Brulotte v Thy. Co. , Bonito Boats, Inc v Thunder Craft Boats, Inc that proved Federal polices in law override contractual intellectual property) . In simple terms Easterbrook did not consider constitutional preemption (ie Federal policies in law).

Consider sitting at home and about to record a TV show for later viewing....then a message splashes across the screen advising the program can not be recorded and by watching it you accept that as a "contract"...recording it breaches that "contract". That's what Easterbrooks judgement supports !!

You've placed too much emphasis on a poor example by using ProCD to support your argument. You need to put some "meat on the bones" rather than just "point scoring other errors" ( which you are very good at btw).

Regards
Hugh

[kirchh]

a holder of a copy of public domain content can restrict, by use of a contract, an acquirer's dissemination of that content.[/B] Obviously, if Zeidenberg had entered into a different contract that permitted the dissemination in which he engaged, he would not have been in violation of the contract. That's a definitional conclusion, and irrelevant.

In line with the precedent established in ProCD, organizations of many kinds, including companies, libraries, universities, and non-profit groups have attached contracts that include restrictions on reuse to public domain information they hold. LexisNexis, Newspapers.com, Princeton University, and the PCA are among those who use the mechanism of a contract to impose limitations on dissemination of public domain content they provide. I have found no reference to any legal rulings that overturn the principle established in ProCD, though I invite you to present some.

--Daniel

This makes your argument rather difficult "Everyone remains free to copy and disseminate all 3,000 telephone books that have been incorporated into ProCD's database. "

You seem quite confused. That reinforces my argument -- and the exact point Judge Easterbrook was making -- that a contract between two parties constraining further dissemination of public domain content does not impinge on the rights conferred to the public due to the material's public domain status, because the contract does not constrain anyone from accessing the source documents and copying and disseminating them. I'm not sure why you would quote the very decision upholding the legality of a contract restricting reuse as somehow countering that decision, unless you really have not read the decision with care.


The district court failed to address the public domain issue which allowed reversal. That being the white pages are public domain.

I don't know what your point is here. Judge Easterbrook upheld the legality of the contract despite the content being public domain. You may disagree with his decision, but that's what he ruled.


"a simple two-party contract is not 'equivalent to any of the exclusive rights within the general scope of copyright' and therefore may be enforced." Something three appeal courts disagree with.

Incorrect; you have it exactly backwards. Once again, you fail to read the text with care. Here is the exact text from the decision:

"But are rights created by contract “equivalent to any of the exclusive rights within the general scope of copyright”?   Three courts of appeals have answered “no.”"

That is, "a simple two-party contract is not 'equivalent to any of the exclusive rights within the general scope of copyright.'" Something three appeal courts agree with.


The sites you list vary considerably from PCA . Read : This is strangely for newspapers .com....btw...as linked at the bottom of the web page...

The Content may be downloaded onto your computer or device through the use of authorized Ancestry software. When downloaded, the Content remains subject to the limited use license contained in this Agreement. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You may use the software provided on the Websites only while online and may not download, copy, reuse or distribute that software, except where it is clearly stated that such software is made available for offline use. Bots, crawlers, spiders, data miners, scraping and any other automatic access tool are expressly prohibited. You agree not to circumvent, disable or otherwise interfere with security related features of the Websites or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Websites or Services or the Content therein.

Ancestry does not claim an exclusive right to images already in the public domain that it has converted into a digital format. However, the Websites contain images or documents that are protected by copyrights or that, even if in the public domain, are subject to restrictions on reuse. By agreeing to these Terms and Conditions, you agree to not reuse these images or documents except that you may reuse public domain images so long as you only use small portions of the images or documents for personal use. If you republish public domain images, you agree to credit the relevant Ancestry Website as the source of the digital image, unless additional specific restrictions apply. If you wish to republish more than a small portion of the images or documents from any of the Websites, you agree to obtain prior written permission from us.

Which really says very little...ie what is a small portion? Personal use? . Practically it doesn't mean much. Enforceable as to public domain documents...unlikely.

Surely you realize that simply repeating your claim that contracts constraining reuse of public domain documents are not legal is not a constructive approach to discussion. Your bolding of certain passages indicates, again, that you have not grasped the key facts under discussion. For example, you emphasize, "does not claim an exclusive right to images already in the public domain that it has converted into a digital format," as though that somehow supports your position. It does not; indeed the converse is true. It is precisely in line with the reasoning set forth by Judge Easterbrook that because two-party contracts do not create exclusive rights that impinge on the content's public domain status, they are legal.


Add to this the multitude of reasons that Easterbrooks judgement is doubtful in a number of areas simply point to it as being an unreliable precedence. (Brulotte v Thy. Co. , Bonito Boats, Inc v Thunder Craft Boats, Inc that proved Federal polices in law override contractual intellectual property) . In simple terms Easterbrook did not consider constitutional preemption (ie Federal policies in law).

Again, it is apparent -- and, frankly, rather tiresome -- that you have not read Easterbrook's decision in whole, or with care. I don't mind helping you with your homework, so to speak, but I am not simply going to do it all for you. If you had actually read the citations you provided along with Eastebrook's decision, you would know that not only were cases such as Bonito different in essential respects, but also that Easterbrook himself explained that difference, and stated why his decision did not conflict. Had you actually read the decision, you would have known that he specifically addresses the issue of preemption, and shows why it does not apply -- because the rights being asserted via contract only apply to the parties to that contract, not to the public in general. Please read Bonito to see the crucial distinction between these cases.


Consider sitting at home and about to record a TV show for later viewing....then a message splashes across the screen advising the program can not be recorded and by watching it you accept that as a "contract"...recording it breaches that "contract". That's what Easterbrooks judgement supports !!

Now you change the topic to that of valid mechanisms for accepting contracts. I have no idea why you wish to abandon the subject under discussion -- the legality of contracts constraining reuse of public domain content -- and the new subject you raise is of little interest to me, nor does it bear on the present topic. Perhaps it merits its own thread.


You've placed too much emphasis on a poor example by using ProCD to support your argument. You need to put some "meat on the bones" rather than just "point scoring other errors" ( which you are very good at btw).

I don't really understand the reference to "point scoring." You've made several errors in your argument; I have corrected them, which undermines your argument and supports my position. ProCD might indeed be a "poor example" -- if it said what you have claimed. Except it doesn't. It dealt with the dissemination of content, not software; the issue of a personal vs. a commercial license was not material; the question of preemption was specifically addressed; and so on. ProCD established that the reuse of public domain content may be restricted by contract, and you have not presented a single fact or argument to the contrary that has withstood even superficial scrutiny.

You are, of course, entitled to disagree with Judge Easterbrook, and with me. You are also entitled to disagree with Mazzone, who writes, on the subject of restrictions on dissemination of public domain works, "ProCD v. Zeidenberg has been enormously influential. A series of cases since the decision have followed Judge Easterbrook's logic and upheld agreements giving additional rights to providers of digital content." And you also disagree with Hirtle, et al, who state that agreements of this sort covering public domain works are probably legal, and that if "a cultural institution specified in its agreements that there could be no subsequent reuse of reproductions provided by the institution to users, the institution could bring legal action against any user who reproduced and distributed copies provided to that user."

--Daniel

[david i]

Back to core points. I cheerfully note that there are no digital rights owned by any creator of a digital copy of a public domain works. "Reproductions" in this context is an unfortunately ambiguous term. The creator of a photocopy of a public domain work has the right to the few pieces of paper in his hand, not because he has any rights to the image, but because he owns... the physical paper. One may not take another person's 8 sheets of paper without his permission. To do so would be to steal. However, no one owns a digital copy of a public domain work. Once it is accessed it may be legally distributed at will. Nothing has been stolen, as any current possessor of the digital information has no claim to it.

I note that while no one has an obligation to distribute a digital copy in his possession of a public domain work free or otherwise (what does "for free" mean?), no one-- including he who copied first the public domain work-- can prevent others from disseminating further copies.

This has prompted an impending release of massive public domain information

Excellent.

-d

[HughC]

Hi Daniel,

Of course you would be aware that in the ProCD case the Court declined to create blanket rule that contract claims are never preempted, as a contract might interfere with the “national objectives” of the Act and be preempted.

Salinger v Random House and Wright v Warner Books have suggested or held that contractual restrictions on fair use are not enforceable .

Jacobsen v Katzer might (might not) support your position.

As I said earlier I can find no example where a public domain document (that doesn't doesn't involve software at some point to obtain) has been used against contract clauses and been successfully enforced. Providing an example would be relevant.

At present I think it's not sufficiently clear as to the effectiveness of contracts for straight archival public domain documents. For instance is it "fair use" for a pen collector to put these PCA sourced documents on his web site for general viewing as an educational aid ?

From a practical point the fact the contract doesn't bind a third party makes it easily sidestepped if one wishes to avoid testing the validity of contract on archival public domain documents.

Again from a practical point the cost v outcome needs to be considered, for instance if PCA detected an infringement and took action a win would cement the contracts ability to limit public domain documents in their library, a loss would open the "gate". This might be why a relevant case is hard to find. The cost of action is a consideration as well as whatever benefit derives from winning. Probably in instance where it has occurred the threat of action has been sufficient to achieve desired outcomes.

I still think PCA would struggle to enforce their position, I'm also inclined to think cost ,financial risk and lack of any financial incentive would make trying to enforce a poor option. Combine that with having to prove the source, having to prove it occurred after the contract as well as proving the validity of contract to apply to those who joined prior to the contract being placed on the web site. I joined prior to this, am I subject to this seeming it occurred after my joining? Probably not...

Regards
Hugh

[kirchh]

Hi Daniel,

Of course you would be aware that in the ProCD case the Court declined to create blanket rule that contract claims are never preempted, as a contract might interfere with the “national objectives” of the Act and be preempted.

Irrelevant. The Court ruled that a contract can restrict the receiving party from dissemination of public domain content. You have not produced a scintilla of evidence that this finding has ever been overturned.


Salinger v Random House and Wright v Warner Books have suggested or held that contractual restrictions on fair use are not enforceable .

Hugh, this is really getting tiresome. Fair use is not the issue under discussion. If you'd like to discuss the current state of law regarding contractual restrictions on fair use, I urge you to start a thread about that subject.


Jacobsen v Katzer might (might not) support your position.

Oh.


As I said earlier I can find no example where a public domain document (that doesn't doesn't involve software at some point to obtain) has been used against contract clauses and been successfully enforced. Providing an example would be relevant.

I have no idea why you again bring up "software". There was no issue regarding any software in the ProCD case, which you would know if you'd actually read the decision. The issue decided in ProCD was whether a contract could restrict dissemination of public domain content. I don't know why I have to keep repeating that, but yet I do. Please read the case before raising this spurious assertion again; it will save me a lot of typing.


At present I think it's not sufficiently clear as to the effectiveness of contracts for straight archival public domain documents.

I fully agree that it's not sufficiently clear to you. It's clear to Mazzone, and to Hirtle, and to me, and to Princeton, and to LexisNexis, and so on. ProCD established the legal principle, and as you have not produced any subsequent ruling that overturned that principle, it stands. You are certainly free to believe the ruling was in error, and that if such a contract were challenged tomorrow, the principle established in ProCD would be overturned. But for now, as Mazzone has explained, "ProCD v. Zeidenberg has been enormously influential. A series of cases since the decision have followed Judge Easterbrook's logic and upheld agreements giving additional rights to providers of digital content."


For instance is it "fair use" for a pen collector to put these PCA sourced documents on his web site for general viewing as an educational aid ?

Why don't you do a bit of reading about what "fair use" means before you pose questions that you can easily answer for yourself? It's best if you educate yourself about these issues before entering into a detailed discussion about them.


From a practical point the fact the contract doesn't bind a third party makes it easily sidestepped if one wishes to avoid testing the validity of contract on archival public domain documents.

Please provide an example that demonstrates what you are trying to assert here. Thanks.


Again from a practical point the cost v outcome needs to be considered, for instance if PCA detected an infringement and took action a win would cement the contracts ability to limit public domain documents in their library, a loss would open the "gate". This might be why a relevant case is hard to find.

Um, a relevant case is hard to find because for the plaintiff, a win would be good and a loss would be bad? Put nicely, that makes no sense at all.

Oh, and a relevant case is easy to find. It's called ProCD v. Zeidenberg. You might want to mull over the fact that you have not even produced a single commentator who feels otherwise (excepting, of course, yourself).


The cost of action is a consideration as well as whatever benefit derives from winning. Probably in instance where it has occurred the threat of action has been sufficient to achieve desired outcomes.

That would be true with lawsuits and contemplated breaches of contract in general. These observations provide no support for your position, however.


I still think PCA would struggle to enforce their position,

It is clear that you think that. It is equally clear that every single reason you have offered for why you think that has been shown to be unfounded. It seems to me that you selected your position prior to examining the facts, and then you hunted for support for your predetermined position once the facts were shown to you. That effort was wholly unsuccessful, but rather than change your position based on facts that were new to you, and corrections of misimpressions you had, you simply moved on to other erroneous readings of the ProCD case that you thought supported your predetermined position. All I can do is point out to you that the approach you are taking is exactly backwards; you have started with a conclusion, then sought out information that supports it. When the information didn't support your position, you ignored that contradictory information and looked elsewhere. It is certainly your prerogative to engage in that sort of behavior, but I suspect that, for obvious reasons, you will not be successful in convincing others of your position, given its complete absence of factual support.


I joined prior to this, am I subject to this seeming [sic] it occurred after my joining? Probably not...

Interesting legal theory. Do you have some citations that support your position about that?

--Daniel

[david i]

Meanwhile, the public domain pen information continues to coalesce into something beautiful...

regards

-d

[david i]

Ron did tell me on August 10th or so that he wanted the PCA to add a user agreement, something new for the PCA website.

-d

[HughC]

The presence of sotware is relevant as it's used in the licence. It adds weight to any violation of contract. If you're going to have a contract putting in as much as possible gives you more options to enforce.

Given it unlikely PCA would even attempt to enforce their contract means it's ineffective, that's the reality regardless of any legal points.

[david i]

...

[kirchh]

The presence of sotware is relevant as it's used in the licence. It adds weight to any violation of contract. If you're going to have a contract putting in as much as possible gives you more options to enforce.

Wrong on all counts. The issue litigated in ProCD was the dissemination of public domain content counter to the terms of the contract prohibiting that. No violation of any software license term was under examination by Judge Easterbrook, as you would know if you'd actually read the decision.

You really shouldn't simply make things up to support your position, as it calls into question your sincerity, among other things.


Given it unlikely PCA would even attempt to enforce their contract means it's ineffective, that's the reality regardless of any legal points.

Incorrect. Your opinion that the PCA would not attempt to enforce their contract does not cause all other people to conclude the same thing and thus lead them to believe that they can violate the contract without consequence. Therefore, your reasoning that the contract is ineffective because you believe the PCA would not litigate if someone violated it fails. Surely you realize that your thoughts do not somehow become everyone's thoughts, yes? And, of course, you fail to distinguish between facts and your opinions; it is not a fact that it's unlikely the PCA would attempt to enforce their contract, it's your opinion; therefore, your factual conclusion that the contract is therefore ineffective is void. The same applies to your confusion between what you characterize as "the reality" and your opinion of what you think might happen. Furthermore, none of your assertions can be independent of "any legal points," as you claim. If the law does not support the types of contracts under discussion, that directly undermines the effectiveness of those contracts; if, on the other hand, the law supports such contracts, that of course affects the effectiveness in the opposite sense.

It's odd that you went to great lengths to attempt to argue the legal issues, and now, when every single one of your arguments has been defeated, you say the legal points don't affect "the reality."

--Daniel

[david i]

Meanwhile the outcome of this process is an evolving huge collection of public domain documents that will serve the greater hobby well. Perhaps we'll be able to partner with FPG to enhance distribution.

-d

[kirchh]

From a practical point the fact the contract doesn't bind a third party makes it easily sidestepped if one wishes to avoid testing the validity of contract on archival public domain documents.

I'd appreciate an example that would illustrate the point you are trying to make here. You could explain, for instance, how someone could easily sidestep the contract entered into by LexisNexis users, or the one that binds recipients of archival public domain content from Princeton's Department of Rare Books and Special Collections.

--Daniel

[david i]

500+ i believe...

-d

[HughC]

Wrong on all counts. The issue litigated in ProCD was the dissemination of public domain content counter to the terms of the contract prohibiting that. No violation of any software license term was under examination by Judge Easterbrook, as you would know if you'd actually read the decision.

You really shouldn't simply make things up to support your position, as it calls into question your sincerity, among other things.


Given it unlikely PCA would even attempt to enforce their contract means it's ineffective, that's the reality regardless of any legal points.

Incorrect. Your opinion that the PCA would not attempt to enforce their contract does not cause all other people to conclude the same thing and thus lead them to believe that they can violate the contract without consequence. Therefore, your reasoning that the contract is ineffective because you believe the PCA would not litigate if someone violated it fails. Surely you realize that your thoughts do not somehow become everyone's thoughts, yes? And, of course, you fail to distinguish between facts and your opinions; it is not a fact that it's unlikely the PCA would attempt to enforce their contract, it's your opinion; therefore, your factual conclusion that the contract is therefore ineffective is void. The same applies to your confusion between what you characterize as "the reality" and your opinion of what you think might happen. Furthermore, none of your assertions can be independent of "any legal points," as you claim. If the law does not support the types of contracts under discussion, that directly undermines the effectiveness of those contracts; if, on the other hand, the law supports such contracts, that of course affects the effectiveness in the opposite sense.

It's odd that you went to great lengths to attempt to argue the legal issues, and now, when every single one of your arguments has been defeated, you say the legal points don't affect "the reality."

--Daniel

Did I mention ProCD? This time you've made it suit your needs. On the second....how can you claim a possible opinion of a future action is incorrect? Speculative yes but incorrect no. That's simply your personal opinion, as is mine.

Regards
Hugh

[HughC]

From a practical point the fact the contract doesn't bind a third party makes it easily sidestepped if one wishes to avoid testing the validity of contract on archival public domain documents.

I'd appreciate an example that would illustrate the point you are trying to make here. You could explain, for instance, how someone could easily sidestep the contract entered into by LexisNexis users, or the one that binds recipients of archival public domain content from Princeton's Department of Rare Books and Special Collections.

--Daniel

Why, you've already agreed third parities aren't affected by a two party contract.

Regards
Hugh

[Farmboy]

While getting back to the core points, I've cheerfully noted that I have not yet gotten my distribution of 500+ digital documents that will further enhance pendom.

Best to use my PO Box mailing address.

T

[david i]

Not ready quite yet.

regards

-d

[kirchh]

Wrong on all counts. The issue litigated in ProCD was the dissemination of public domain content counter to the terms of the contract prohibiting that. No violation of any software license term was under examination by Judge Easterbrook, as you would know if you'd actually read the decision.

You really shouldn't simply make things up to support your position, as it calls into question your sincerity, among other things.


Given it unlikely PCA would even attempt to enforce their contract means it's ineffective, that's the reality regardless of any legal points.

Incorrect. Your opinion that the PCA would not attempt to enforce their contract does not cause all other people to conclude the same thing and thus lead them to believe that they can violate the contract without consequence. Therefore, your reasoning that the contract is ineffective because you believe the PCA would not litigate if someone violated it fails. Surely you realize that your thoughts do not somehow become everyone's thoughts, yes? And, of course, you fail to distinguish between facts and your opinions; it is not a fact that it's unlikely the PCA would attempt to enforce their contract, it's your opinion; therefore, your factual conclusion that the contract is therefore ineffective is void. The same applies to your confusion between what you characterize as "the reality" and your opinion of what you think might happen. Furthermore, none of your assertions can be independent of "any legal points," as you claim. If the law does not support the types of contracts under discussion, that directly undermines the effectiveness of those contracts; if, on the other hand, the law supports such contracts, that of course affects the effectiveness in the opposite sense.

It's odd that you went to great lengths to attempt to argue the legal issues, and now, when every single one of your arguments has been defeated, you say the legal points don't affect "the reality."

--Daniel

Did I mention ProCD? This time you've made it suit your needs.

I haven't discussed my "needs," nor have I "made" the ProCD decision suit anything. I've merely explained it to you. But it is interesting that you view the discussion as one where the parties have needs that they would try to suit. That does help explain your approach thus far.


On the second....how can you claim a possible opinion of a future action is incorrect? Speculative yes but incorrect no. That's simply your personal opinion, as is mine.

Again, a failure to read textual material with care. What I explained was incorrect was your logic.

--Daniel

[kirchh]

From a practical point the fact the contract doesn't bind a third party makes it easily sidestepped if one wishes to avoid testing the validity of contract on archival public domain documents.

I'd appreciate an example that would illustrate the point you are trying to make here. You could explain, for instance, how someone could easily sidestep the contract entered into by LexisNexis users, or the one that binds recipients of archival public domain content from Princeton's Department of Rare Books and Special Collections.

--Daniel

Why, you've already agreed third parities aren't affected by a two party contract.

Regards
Hugh

Then you believe it would be a simple matter to provide an example that would illustrate the point you are trying to make here. Please explain how someone could "easily sidestep" the contract entered into by recipients of archival public domain content from Princeton's Department of Rare Books and Special Collections.

Thanks.
--Daniel

[david i]

Within the month or so, most likely.

-d

[HughC]

From a practical point the fact the contract doesn't bind a third party makes it easily sidestepped if one wishes to avoid testing the validity of contract on archival public domain documents.

I'd appreciate an example that would illustrate the point you are trying to make here. You could explain, for instance, how someone could easily sidestep the contract entered into by LexisNexis users, or the one that binds recipients of archival public domain content from Princeton's Department of Rare Books and Special Collections.

--Daniel

Why, you've already agreed third parities aren't affected by a two party contract.

Regards
Hugh

Then you believe it would be a simple matter to provide an example that would illustrate the point you are trying to make here. Please explain how someone could "easily sidestep" the contract entered into by recipients of archival public domain content from Princeton's Department of Rare Books and Special Collections.

Thanks.
--Daniel

Oh. you ignore a request to provide an example other than ProCD and suddenly expect me to jump to your request......by all means feel free to post them here if it's so important.

Regards
Hugh

[HughC]

Wrong on all counts. The issue litigated in ProCD was the dissemination of public domain content counter to the terms of the contract prohibiting that. No violation of any software license term was under examination by Judge Easterbrook, as you would know if you'd actually read the decision.

You really shouldn't simply make things up to support your position, as it calls into question your sincerity, among other things.


Given it unlikely PCA would even attempt to enforce their contract means it's ineffective, that's the reality regardless of any legal points.

Incorrect. Your opinion that the PCA would not attempt to enforce their contract does not cause all other people to conclude the same thing and thus lead them to believe that they can violate the contract without consequence. Therefore, your reasoning that the contract is ineffective because you believe the PCA would not litigate if someone violated it fails. Surely you realize that your thoughts do not somehow become everyone's thoughts, yes? And, of course, you fail to distinguish between facts and your opinions; it is not a fact that it's unlikely the PCA would attempt to enforce their contract, it's your opinion; therefore, your factual conclusion that the contract is therefore ineffective is void. The same applies to your confusion between what you characterize as "the reality" and your opinion of what you think might happen. Furthermore, none of your assertions can be independent of "any legal points," as you claim. If the law does not support the types of contracts under discussion, that directly undermines the effectiveness of those contracts; if, on the other hand, the law supports such contracts, that of course affects the effectiveness in the opposite sense.

It's odd that you went to great lengths to attempt to argue the legal issues, and now, when every single one of your arguments has been defeated, you say the legal points don't affect "the reality."

--Daniel

Did I mention ProCD? This time you've made it suit your needs.

I haven't discussed my "needs," nor have I "made" the ProCD decision suit anything. I've merely explained it to you. But it is interesting that you view the discussion as one where the parties have needs that they would try to suit. That does help explain your approach thus far.


On the second....how can you claim a possible opinion of a future action is incorrect? Speculative yes but incorrect no. That's simply your personal opinion, as is mine.

Again, a failure to read textual material with care. What I explained was incorrect was your logic.

--Daniel

On the first point you used what I wrote out of context.....to suit yourself.

Actually I've said all along enforceability is the real issue. A failure to accept real world reality clouds your ability to consider the practical considerations. Having a legally enforceable contract is one thing, actually enforcing it another that involves weighing up the elements involved. In the PCAs case it would now appear, reading other posts, that it will become a no-issue in the near future rendering all this pointless. Just to make it clear, it's my personal opinion that any action by PCA would be unlikely for already stated reasons. Again personally I would also think it a waste of members funds on a futile action that would achieve nothing of value. And btw what you explained was your personal opinion on my logic.

Regards
Hugh

[kirchh]

From a practical point the fact the contract doesn't bind a third party makes it easily sidestepped if one wishes to avoid testing the validity of contract on archival public domain documents.

I'd appreciate an example that would illustrate the point you are trying to make here. You could explain, for instance, how someone could easily sidestep the contract entered into by LexisNexis users, or the one that binds recipients of archival public domain content from Princeton's Department of Rare Books and Special Collections.

--Daniel

Why, you've already agreed third parities aren't affected by a two party contract.

Regards
Hugh

Then you believe it would be a simple matter to provide an example that would illustrate the point you are trying to make here. Please explain how someone could "easily sidestep" the contract entered into by recipients of archival public domain content from Princeton's Department of Rare Books and Special Collections.

Thanks.
--Daniel

Oh. you ignore a request to provide an example other than ProCD and suddenly expect me to jump to your request......by all means feel free to post them here if it's so important.

Regards
Hugh

You're confused. I explained that ProCD was the case that set out the precedent for the principle under discussion, and you have presented nothing to contradict my position on that. Therefore, I have made no claim that requires me providing any further examples.

You, on the other hand, made a claim, but have repeatedly refused to support it by providing even a simple hypothetical scenario. It is not unreasonable to conclude that you cannot construct such an example, which obviously calls into question the validity of your claim.

--Daniel

[kirchh]

Wrong on all counts. The issue litigated in ProCD was the dissemination of public domain content counter to the terms of the contract prohibiting that. No violation of any software license term was under examination by Judge Easterbrook, as you would know if you'd actually read the decision.

You really shouldn't simply make things up to support your position, as it calls into question your sincerity, among other things.


Given it unlikely PCA would even attempt to enforce their contract means it's ineffective, that's the reality regardless of any legal points.

Incorrect. Your opinion that the PCA would not attempt to enforce their contract does not cause all other people to conclude the same thing and thus lead them to believe that they can violate the contract without consequence. Therefore, your reasoning that the contract is ineffective because you believe the PCA would not litigate if someone violated it fails. Surely you realize that your thoughts do not somehow become everyone's thoughts, yes? And, of course, you fail to distinguish between facts and your opinions; it is not a fact that it's unlikely the PCA would attempt to enforce their contract, it's your opinion; therefore, your factual conclusion that the contract is therefore ineffective is void. The same applies to your confusion between what you characterize as "the reality" and your opinion of what you think might happen. Furthermore, none of your assertions can be independent of "any legal points," as you claim. If the law does not support the types of contracts under discussion, that directly undermines the effectiveness of those contracts; if, on the other hand, the law supports such contracts, that of course affects the effectiveness in the opposite sense.

It's odd that you went to great lengths to attempt to argue the legal issues, and now, when every single one of your arguments has been defeated, you say the legal points don't affect "the reality."

--Daniel

Did I mention ProCD? This time you've made it suit your needs.

I haven't discussed my "needs," nor have I "made" the ProCD decision suit anything. I've merely explained it to you. But it is interesting that you view the discussion as one where the parties have needs that they would try to suit. That does help explain your approach thus far.


On the second....how can you claim a possible opinion of a future action is incorrect? Speculative yes but incorrect no. That's simply your personal opinion, as is mine.

Again, a failure to read textual material with care. What I explained was incorrect was your logic.

--Daniel

On the first point you used what I wrote out of context.....to suit yourself.

Actually I've said all along enforceability is the real issue. A failure to accept real world reality clouds your ability to consider the practical considerations.

Once again, you fail to read with care. Please provide a quote of mine where I reach a conclusion that is clouded by my inability to consider the practical considerations due to my failure to accept "real world reality."


Having a legally enforceable contract is one thing, actually enforcing it another that involves weighing up the elements involved.

I'm pleased we finally agree that you are unable to continue to argue that the contracts under discussion are not legally enforceable. That's real progress.

--Daniel

[david i]

Three weeks?

-d

[HughC]

Wrong on all counts. The issue litigated in ProCD was the dissemination of public domain content counter to the terms of the contract prohibiting that. No violation of any software license term was under examination by Judge Easterbrook, as you would know if you'd actually read the decision.

You really shouldn't simply make things up to support your position, as it calls into question your sincerity, among other things.


Given it unlikely PCA would even attempt to enforce their contract means it's ineffective, that's the reality regardless of any legal points.

Incorrect. Your opinion that the PCA would not attempt to enforce their contract does not cause all other people to conclude the same thing and thus lead them to believe that they can violate the contract without consequence. Therefore, your reasoning that the contract is ineffective because you believe the PCA would not litigate if someone violated it fails. Surely you realize that your thoughts do not somehow become everyone's thoughts, yes? And, of course, you fail to distinguish between facts and your opinions; it is not a fact that it's unlikely the PCA would attempt to enforce their contract, it's your opinion; therefore, your factual conclusion that the contract is therefore ineffective is void. The same applies to your confusion between what you characterize as "the reality" and your opinion of what you think might happen. Furthermore, none of your assertions can be independent of "any legal points," as you claim. If the law does not support the types of contracts under discussion, that directly undermines the effectiveness of those contracts; if, on the other hand, the law supports such contracts, that of course affects the effectiveness in the opposite sense.

It's odd that you went to great lengths to attempt to argue the legal issues, and now, when every single one of your arguments has been defeated, you say the legal points don't affect "the reality."

--Daniel

Did I mention ProCD? This time you've made it suit your needs.

I haven't discussed my "needs," nor have I "made" the ProCD decision suit anything. I've merely explained it to you. But it is interesting that you view the discussion as one where the parties have needs that they would try to suit. That does help explain your approach thus far.


On the second....how can you claim a possible opinion of a future action is incorrect? Speculative yes but incorrect no. That's simply your personal opinion, as is mine.

Again, a failure to read textual material with care. What I explained was incorrect was your logic.

--Daniel

On the first point you used what I wrote out of context.....to suit yourself.

Actually I've said all along enforceability is the real issue. A failure to accept real world reality clouds your ability to consider the practical considerations.

Once again, you fail to read with care. Please provide a quote of mine where I reach a conclusion that is clouded by my inability to consider the practical considerations due to my failure to accept "real world reality."


Having a legally enforceable contract is one thing, actually enforcing it another that involves weighing up the elements involved.

I'm pleased we finally agree that you are unable to continue to argue that the contracts under discussion are not legally enforceable. That's real progress.

--Daniel


"You, on the other hand, made a claim, but have repeatedly refused to support it by providing even a simple hypothetical scenario. It is not unreasonable to conclude that you cannot construct such an example, which obviously calls into question the validity of your claim."

That should suffice.

I'm still waiting for another example as requested.

Regards
Hugh

[HughC]

From a practical point the fact the contract doesn't bind a third party makes it easily sidestepped if one wishes to avoid testing the validity of contract on archival public domain documents.

I'd appreciate an example that would illustrate the point you are trying to make here. You could explain, for instance, how someone could easily sidestep the contract entered into by LexisNexis users, or the one that binds recipients of archival public domain content from Princeton's Department of Rare Books and Special Collections.

--Daniel

Why, you've already agreed third parities aren't affected by a two party contract.

Regards
Hugh

Then you believe it would be a simple matter to provide an example that would illustrate the point you are trying to make here. Please explain how someone could "easily sidestep" the contract entered into by recipients of archival public domain content from Princeton's Department of Rare Books and Special Collections.

Thanks.
--Daniel

Oh. you ignore a request to provide an example other than ProCD and suddenly expect me to jump to your request......by all means feel free to post them here if it's so important.

Regards
Hugh

You're confused. I explained that ProCD was the case that set out the precedent for the principle under discussion, and you have presented nothing to contradict my position on that. Therefore, I have made no claim that requires me providing any further examples.

You, on the other hand, made a claim, but have repeatedly refused to support it by providing even a simple hypothetical scenario. It is not unreasonable to conclude that you cannot construct such an example, which obviously calls into question the validity of your claim.

--Daniel

Confusion seems to be "word of the day"!! As someone who has read the ProCD case you would realize Easteerbrook already did it.

A copyright is a right against the world. Contracts, by contrast, generally affect only their parties; strangers may do as they please, so contracts do not create "exclusive rights." Someone who found a copy of SelectPhone (trademark) on the street would not be affected by the shrinkwrap license - though the federal copyright laws of their own force would limit the finder's ability to copy or transmit the application program.

I'm still waiting for another example as requested.

Regards
Hugh

[kirchh]

From a practical point the fact the contract doesn't bind a third party makes it easily sidestepped if one wishes to avoid testing the validity of contract on archival public domain documents.

I'd appreciate an example that would illustrate the point you are trying to make here. You could explain, for instance, how someone could easily sidestep the contract entered into by LexisNexis users, or the one that binds recipients of archival public domain content from Princeton's Department of Rare Books and Special Collections.

--Daniel

Why, you've already agreed third parities aren't affected by a two party contract.

Regards
Hugh

Then you believe it would be a simple matter to provide an example that would illustrate the point you are trying to make here. Please explain how someone could "easily sidestep" the contract entered into by recipients of archival public domain content from Princeton's Department of Rare Books and Special Collections.

Thanks.
--Daniel

Oh. you ignore a request to provide an example other than ProCD and suddenly expect me to jump to your request......by all means feel free to post them here if it's so important.

Regards
Hugh

You're confused. I explained that ProCD was the case that set out the precedent for the principle under discussion, and you have presented nothing to contradict my position on that. Therefore, I have made no claim that requires me providing any further examples.

You, on the other hand, made a claim, but have repeatedly refused to support it by providing even a simple hypothetical scenario. It is not unreasonable to conclude that you cannot construct such an example, which obviously calls into question the validity of your claim.

--Daniel

Confusion seems to be "word of the day"!! As someone who has read the ProCD case you would realize Easteerbrook already did it.

A copyright is a right against the world. Contracts, by contrast, generally affect only their parties; strangers may do as they please, so contracts do not create "exclusive rights." Someone who found a copy of SelectPhone (trademark) on the street would not be affected by the shrinkwrap license - though the federal copyright laws of their own force would limit the finder's ability to copy or transmit the application program.

I'm still waiting for another example as requested.

Regards
Hugh

Apparently you don't even understand your own claims.

You said, "From a practical point the fact the contract doesn't bind a third party makes it easily sidestepped if one wishes to avoid testing the validity of contract on archival public domain documents." We are discussing terms that are accepted as a condition attached to viewing archived public domain documents, such as the PCA's or those detailed on the Princeton archive site, or those of LexisNexis. I hope I don't have to explain to you what a "shrinkwrap license" is and how it differs in an essential way.

Because the materials held by, say, the Princeton archive, are not distributed on a CD with a shrinkwrap license, you have failed to produce an example of how (barring dishonesty) the associated contract is "easily sidestepped."

Why are you having so much difficulty crafting a simple example of the procedure you declared was so simple?

--Daniel

[kirchh]

Wrong on all counts. The issue litigated in ProCD was the dissemination of public domain content counter to the terms of the contract prohibiting that. No violation of any software license term was under examination by Judge Easterbrook, as you would know if you'd actually read the decision.

You really shouldn't simply make things up to support your position, as it calls into question your sincerity, among other things.


Given it unlikely PCA would even attempt to enforce their contract means it's ineffective, that's the reality regardless of any legal points.

Incorrect. Your opinion that the PCA would not attempt to enforce their contract does not cause all other people to conclude the same thing and thus lead them to believe that they can violate the contract without consequence. Therefore, your reasoning that the contract is ineffective because you believe the PCA would not litigate if someone violated it fails. Surely you realize that your thoughts do not somehow become everyone's thoughts, yes? And, of course, you fail to distinguish between facts and your opinions; it is not a fact that it's unlikely the PCA would attempt to enforce their contract, it's your opinion; therefore, your factual conclusion that the contract is therefore ineffective is void. The same applies to your confusion between what you characterize as "the reality" and your opinion of what you think might happen. Furthermore, none of your assertions can be independent of "any legal points," as you claim. If the law does not support the types of contracts under discussion, that directly undermines the effectiveness of those contracts; if, on the other hand, the law supports such contracts, that of course affects the effectiveness in the opposite sense.

It's odd that you went to great lengths to attempt to argue the legal issues, and now, when every single one of your arguments has been defeated, you say the legal points don't affect "the reality."

--Daniel

Did I mention ProCD? This time you've made it suit your needs.

I haven't discussed my "needs," nor have I "made" the ProCD decision suit anything. I've merely explained it to you. But it is interesting that you view the discussion as one where the parties have needs that they would try to suit. That does help explain your approach thus far.


On the second....how can you claim a possible opinion of a future action is incorrect? Speculative yes but incorrect no. That's simply your personal opinion, as is mine.

Again, a failure to read textual material with care. What I explained was incorrect was your logic.

--Daniel

On the first point you used what I wrote out of context.....to suit yourself.

Actually I've said all along enforceability is the real issue. A failure to accept real world reality clouds your ability to consider the practical considerations.

Once again, you fail to read with care. Please provide a quote of mine where I reach a conclusion that is clouded by my inability to consider the practical considerations due to my failure to accept "real world reality."


Having a legally enforceable contract is one thing, actually enforcing it another that involves weighing up the elements involved.

I'm pleased we finally agree that you are unable to continue to argue that the contracts under discussion are not legally enforceable. That's real progress.

--Daniel


"You, on the other hand, made a claim, but have repeatedly refused to support it by providing even a simple hypothetical scenario. It is not unreasonable to conclude that you cannot construct such an example, which obviously calls into question the validity of your claim."

That should suffice.

I'm still waiting for another example as requested.

Regards
Hugh

I think you missed a post of mine. I already explained why there was no burden on me to provide a second example. I understand that you are having difficulty backing up your claim that the contracts under discussion are "easily sidestepped" by providing even a single hypothetical, and it is starting to look as though you will be unable to do so, with the obvious consequences for your argument.

--Daniel

[david i]

Perhaps 5.5 weeks.

-d

[Farmboy]

Perhaps 5.5 weeks.

-d
I'll give you no more than 10 days. Then we shall get tough.

[HughC]

Because the materials held by, say, the Princeton archive, are not distributed on a CD with a shrinkwrap license, you have failed to produce an example of how (barring dishonesty) the associated contract is "easily sidestepped."

--Daniel

Irrelevant. The same principle applies as Easterbrook pointed out.

Regards
Hugh

[HughC]

[QUOTE=kirchh;94887

I think you missed a post of mine. I already explained why there was no burden on me to provide a second example. I understand that you are having difficulty backing up your claim that the contracts under discussion are "easily sidestepped" by providing even a single hypothetical, and it is starting to look as though you will be unable to do so, with the obvious consequences for your argument.

--Daniel[/QUOTE]

See this (http://www.archivists.org/conference/sanfrancisco2008/docs/session101-Frankel.pdf) . Note the reference to the ProCD case that you've read yet failed to understand.

Regards
Hugh

[david i]

Perhaps 5.5 weeks.

-d
I'll give you no more than 10 days. Then we shall get tough.


Don't forget my baseline "organizational" skills. The contributors have sent the info. Need to process...

-d

[kirchh]

I think you missed a post of mine. I already explained why there was no burden on me to provide a second example. I understand that you are having difficulty backing up your claim that the contracts under discussion are "easily sidestepped" by providing even a single hypothetical, and it is starting to look as though you will be unable to do so, with the obvious consequences for your argument.

--Daniel

See this (http://www.archivists.org/conference/sanfrancisco2008/docs/session101-Frankel.pdf) . Note the reference to the ProCD case that you've read yet failed to understand.

Regards
Hugh

Apparently, you didn't read the citation you just supplied. Go ahead and actually read it, then post back here with a specific quotation from that slideshow that makes your point. Specificity is important.

--Daniel

[david i]

Idunno. Maybe 4.5 weeks. Certainly not 10 days.

-d

[HughC]

Of course if I downloaded the PCA documents and placed them on a flash drive for storage and then "lost" it and "Mr ED" found said flash drive and put the contents on his web site he's not bound by any agreement that might exist between PCA and myself.....as Easterbrook pointed out.

Regards
Hugh

[kirchh]

Because the materials held by, say, the Princeton archive, are not distributed on a CD with a shrinkwrap license, you have failed to produce an example of how (barring dishonesty) the associated contract is "easily sidestepped."

--Daniel

Irrelevant. The same principle applies as Easterbrook pointed out.

Regards
Hugh

Ah, then it should be that much easier for you to explain how one could (without being dishonest, of course), "sidestep" the reuse terms attached to materials from Princeton's archive, or from LexisNexis.

Yet, you continue to be unable to say how those provisions are "easily sidestepped." Until you provide support for your claim, it is empty. It is certainly your prerogative to refuse to support a claim you've made, though the consequences will be obvious.

--Daniel

[david i]

A month?

-d

[kirchh]

Of course if I downloaded the PCA documents and placed them on a flash drive for storage and then "lost" it and "Mr ED" found said flash drive and put the contents on his web site he's not bound by any agreement that might exist between PCA and myself.....as Easterbrook pointed out.

Regards
Hugh

That scenario fails, because it involves dishonesty.

Try again.

--Daniel

[david i]

Three weeks at the outside. I do appreciate all the encouragement.

-d

[HughC]

I think you missed a post of mine. I already explained why there was no burden on me to provide a second example. I understand that you are having difficulty backing up your claim that the contracts under discussion are "easily sidestepped" by providing even a single hypothetical, and it is starting to look as though you will be unable to do so, with the obvious consequences for your argument.

--Daniel

See this (http://www.archivists.org/conference/sanfrancisco2008/docs/session101-Frankel.pdf) . Note the reference to the ProCD case that you've read yet failed to understand.

Regards
Hugh

Apparently, you didn't read the citation you just supplied. Go ahead and actually read it, then post back here with a specific quotation from that slideshow that makes your point. Specificity is important.

--Daniel

As
ProCD noted, contract is only a right against the parties
•
In age of easy digital distribution, how much practical control will restrictive license terms allow?
–
not enforceable against third parties
–
not practical to ask party to bound third parties

Now this is becoming tiresome. Meanwhile I wait for the requested example you seem to believe you don't need to find....is it because you can't find one? I'm happy to accept that as a reason.

Regards
Hugh

[HughC]

Of course if I downloaded the PCA documents and placed them on a flash drive for storage and then "lost" it and "Mr ED" found said flash drive and put the contents on his web site he's not bound by any agreement that might exist between PCA and myself.....as Easterbrook pointed out.

Regards
Hugh

That scenario fails, because it involves dishonesty.

Try again.

--Daniel

What's dishonest about losing something ?

Regards
Hugh

[kirchh]

I think you missed a post of mine. I already explained why there was no burden on me to provide a second example. I understand that you are having difficulty backing up your claim that the contracts under discussion are "easily sidestepped" by providing even a single hypothetical, and it is starting to look as though you will be unable to do so, with the obvious consequences for your argument.

--Daniel

See this (http://www.archivists.org/conference/sanfrancisco2008/docs/session101-Frankel.pdf) . Note the reference to the ProCD case that you've read yet failed to understand.

Regards
Hugh

Apparently, you didn't read the citation you just supplied. Go ahead and actually read it, then post back here with a specific quotation from that slideshow that makes your point. Specificity is important.

--Daniel

As
ProCD noted, contract is only a right against the parties
•
In age of easy digital distribution, how much practical control will restrictive license terms allow?
–
not enforceable against third parties
–
not practical to ask party to bound third parties

Now this is becoming tiresome.

Ah, I see the problem -- you (again) have only skimmed what I've written, rather than reading it thoroughly. That trips you up again.

I already explained that public domain works are not controlled by two-party contracts here (http://fpgeeks.com/forum/showthread.php/8112-Public-Domain-Pen-Documents-Now-Online?p=94078&viewfull=1#post94078). I guess you didn't read that with care (or at all).

I explained it again here. (http://fpgeeks.com/forum/showthread.php/8112-Public-Domain-Pen-Documents-Now-Online?p=94103&viewfull=1#post94103) Oddly, despite the fact that I explained it to you, you apparently didn't read that.

I reiterated the point that the contract only applies to the parties here (http://fpgeeks.com/forum/showthread.php/8112-Public-Domain-Pen-Documents-Now-Online?p=94309&viewfull=1#post94309); I gather you didn't see that post.

I again stressed this point here. (http://fpgeeks.com/forum/showthread.php/8112-Public-Domain-Pen-Documents-Now-Online?p=94405&viewfull=1#post94405) You failed to read that, I guess.

I repeated the point yet again here. (http://fpgeeks.com/forum/showthread.php/8112-Public-Domain-Pen-Documents-Now-Online?p=94494&viewfull=1#post94494) Surprise -- you didn't read that.

I re-stated this point directly to you here (http://fpgeeks.com/forum/showthread.php/8112-Public-Domain-Pen-Documents-Now-Online?p=94673&viewfull=1#post94673). And...well, you know.

Most astonishingly, you've already admitted that I've made this point (http://fpgeeks.com/forum/showthread.php/8112-Public-Domain-Pen-Documents-Now-Online?p=94777&viewfull=1#post94777). I guess you forgot that, because it was a while ago. This morning, to be precise.


Meanwhile I wait for the requested example you seem to believe you don't need to find....is it because you can't find one? I'm happy to accept that as a reason.

I already explained why I don't need to provide a second example. I know -- you didn't read that. Not that the pattern needed further reinforcing.

--Daniel

[kirchh]

Of course if I downloaded the PCA documents and placed them on a flash drive for storage and then "lost" it and "Mr ED" found said flash drive and put the contents on his web site he's not bound by any agreement that might exist between PCA and myself.....as Easterbrook pointed out.

Regards
Hugh

That scenario fails, because it involves dishonesty.

Try again.

--Daniel

What's dishonest about losing something ?

Regards
Hugh

Nothing. It's pretending to lose something, as you described in your example, that's dishonest.

But you knew that.

--Daniel

[david i]

I still suspect will take 5-6 weeks.

-d

[mhosea]

Dang, why am I still f-ing reading this thread?!

[david i]

Dang, why am I still f-ing reading this thread?!

One reason is rubber necking. Someone who appears obsessed with-- or unduly psychologically invested in-- "being right", even self-admittedly very concerned with that process, can be highly entertaining to observe. As we drive past, we turn to watch. I suspect that too is why Hugh is enjoying the process here. Hugh is a pretty relaxed/balanced fellow. Not everyone is of course. In my real world (vs the charming fantasy universe that is pen collecting), I see plenty of this stuff during my hospital work.

The process of pokity-poke of course can bring forth new concepts, which always is a good thing. I do it often with the OCD Aspergerian cranky pen collectors (the nice OCD Aspergerians I tend to let be). I suspect Hugh is enjoying engaging a bit in pen pokity-poke too. Hmmm... along with Hack Amateur Newbie, I might have to trademark that. Hell, if Trump can get, "You're Fired!"...

regards

-d

[Farmboy]

I still suspect will take 5-6 weeks.

-d


Three weeks at the outside. I do appreciate all the encouragement.

-d


A month?

-d


Idunno. Maybe 4.5 weeks. Certainly not 10 days.

-d
Are you avoiding commitment?

I'm sending my people to meet with your people.

[Jon Szanto]

Are you avoiding commitment?

I'm sending my people to meet with your people.

Book 'em, Danno.

[Farmboy]

Are you avoiding commitment?

I'm sending my people to meet with your people.

Book 'em, Danno.
Prisoners are a lot of effort. I think we can find an easier method.

[HughC]

I think you missed a post of mine. I already explained why there was no burden on me to provide a second example. I understand that you are having difficulty backing up your claim that the contracts under discussion are "easily sidestepped" by providing even a single hypothetical, and it is starting to look as though you will be unable to do so, with the obvious consequences for your argument.

--Daniel

See this (http://www.archivists.org/conference/sanfrancisco2008/docs/session101-Frankel.pdf) . Note the reference to the ProCD case that you've read yet failed to understand.

Regards
Hugh

Apparently, you didn't read the citation you just supplied. Go ahead and actually read it, then post back here with a specific quotation from that slideshow that makes your point. Specificity is important.

--Daniel

As
ProCD noted, contract is only a right against the parties
•
In age of easy digital distribution, how much practical control will restrictive license terms allow?
–
not enforceable against third parties
–
not practical to ask party to bound third parties

Now this is becoming tiresome.

Ah, I see the problem -- you (again) have only skimmed what I've written, rather than reading it thoroughly. That trips you up again.

I already explained that public domain works are not controlled by two-party contracts here (http://fpgeeks.com/forum/showthread.php/8112-Public-Domain-Pen-Documents-Now-Online?p=94078&viewfull=1#post94078). I guess you didn't read that with care (or at all).

I explained it again here. (http://fpgeeks.com/forum/showthread.php/8112-Public-Domain-Pen-Documents-Now-Online?p=94103&viewfull=1#post94103) Oddly, despite the fact that I explained it to you, you apparently didn't read that.

I reiterated the point that the contract only applies to the parties here (http://fpgeeks.com/forum/showthread.php/8112-Public-Domain-Pen-Documents-Now-Online?p=94309&viewfull=1#post94309); I gather you didn't see that post.

I again stressed this point here. (http://fpgeeks.com/forum/showthread.php/8112-Public-Domain-Pen-Documents-Now-Online?p=94405&viewfull=1#post94405) You failed to read that, I guess.

I repeated the point yet again here. (http://fpgeeks.com/forum/showthread.php/8112-Public-Domain-Pen-Documents-Now-Online?p=94494&viewfull=1#post94494) Surprise -- you didn't read that.

I re-stated this point directly to you here (http://fpgeeks.com/forum/showthread.php/8112-Public-Domain-Pen-Documents-Now-Online?p=94673&viewfull=1#post94673). And...well, you know.

Most astonishingly, you've already admitted that I've made this point (http://fpgeeks.com/forum/showthread.php/8112-Public-Domain-Pen-Documents-Now-Online?p=94777&viewfull=1#post94777). I guess you forgot that, because it was a while ago. This morning, to be precise.


Meanwhile I wait for the requested example you seem to believe you don't need to find....is it because you can't find one? I'm happy to accept that as a reason.

I already explained why I don't need to provide a second example. I know -- you didn't read that. Not that the pattern needed further reinforcing.

--Daniel

What a circus!! Anything to avoid reality....

Regards
Hugh

[HughC]

Of course if I downloaded the PCA documents and placed them on a flash drive for storage and then "lost" it and "Mr ED" found said flash drive and put the contents on his web site he's not bound by any agreement that might exist between PCA and myself.....as Easterbrook pointed out.

Regards
Hugh

That scenario fails, because it involves dishonesty.

Try again.

--Daniel

What's dishonest about losing something ?

Regards
Hugh

Nothing. It's pretending to lose something, as you described in your example, that's dishonest.

But you knew that.

--Daniel

Will you kind enough to provide some examples of losing something as being dishonest to back this claim rather than just expressing a personal opinion that would appear to based on some basic misunderstanding of the concept of "lost".

Regards
Hugh

[HughC]

Dang, why am I still f-ing reading this thread?!

Confused? Didn't read the license ? "Lost" you way ? Didn't read it correctly ?There could be a myriad of reasons.....few....if any....based on logic ...even fewer ....damn... I've forgotten that bit...

[david i]

Three weeks at the outside. I do appreciate all the encouragement.

-d


A month?

-d


Idunno. Maybe 4.5 weeks. Certainly not 10 days.

-d
Are you avoiding commitment?

I'm sending my people to meet with your people.

I have people?

Cool

-d

[kirchh]

Of course if I downloaded the PCA documents and placed them on a flash drive for storage and then "lost" it and "Mr ED" found said flash drive and put the contents on his web site he's not bound by any agreement that might exist between PCA and myself.....as Easterbrook pointed out.

Regards
Hugh

That scenario fails, because it involves dishonesty.

Try again.

--Daniel

What's dishonest about losing something ?

Regards
Hugh

Nothing. It's pretending to lose something, as you described in your example, that's dishonest.

But you knew that.

--Daniel

Will you kind enough to provide some examples of losing something as being dishonest to back this claim rather than just expressing a personal opinion that would appear to based on some basic misunderstanding of the concept of "lost".

Regards
Hugh

No need -- you have already done that.

In your example, you wanted to redistribute public domain documents to your friend who is named after a talking horse. However, the contract you entered into prohibits you from redistributing the documents. You want to "sidestep" that contract, as you put it, so you pretend to lose (as indicated by your placing the word in scare quotes) the documents so that your friend can pretend to find them. Via this dishonest act, you believe you have now enabled your friend, a third party not bound by the contract, to make free use of the documents.

Thanks for the example of how you propose to dishonestly sidestep the contract.

However, I was hoping you could provide an example of how the contract could be "easily sidestepped" without engaging in any dishonesty. So let's use the scenario you introduced as a starting point:

You want to redistribute public domain documents to your friend who is named after a talking horse. However, the contract you entered into prohibits you from redistributing the documents. You want to "sidestep" that contract, as you put it, so you [fill in this part]. As a result of your actions, which are not dishonest, you believe you have now enabled your friend, a third party not bound by the contract, to make free use of the documents, and you have not violated the contract to which you are a party.


--Daniel

[david i]

I hear bleating.

Still, six weeks would be a reasonable target.

[HughC]

Of course if I downloaded the PCA documents and placed them on a flash drive for storage and then "lost" it and "Mr ED" found said flash drive and put the contents on his web site he's not bound by any agreement that might exist between PCA and myself.....as Easterbrook pointed out.

Regards
Hugh

That scenario fails, because it involves dishonesty.

Try again.

--Daniel

What's dishonest about losing something ?

Regards
Hugh

Nothing. It's pretending to lose something, as you described in your example, that's dishonest.

But you knew that.

--Daniel

Will you kind enough to provide some examples of losing something as being dishonest to back this claim rather than just expressing a personal opinion that would appear to based on some basic misunderstanding of the concept of "lost".

Regards
Hugh

No need -- you have already done that.

In your example, you wanted to redistribute public domain documents to your friend who is named after a talking horse. However, the contract you entered into prohibits you from redistributing the documents. You want to "sidestep" that contract, as you put it, so you pretend to lose (as indicated by your placing the word in scare quotes) the documents so that your friend can pretend to find them. Via this dishonest act, you believe you have now enabled your friend, a third party not bound by the contract, to make free use of the documents.

Thanks for the example of how you propose to dishonestly sidestep the contract.

However, I was hoping you could provide an example of how the contract could be "easily sidestepped" without engaging in any dishonesty. So let's use the scenario you introduced as a starting point:

You want to redistribute public domain documents to your friend who is named after a talking horse. However, the contract you entered into prohibits you from redistributing the documents. You want to "sidestep" that contract, as you put it, so you [fill in this part]. As a result of your actions, which are not dishonest, you believe you have now enabled your friend, a third party not bound by the contract, to make free use of the documents, and you have not violated the contract to which you are a party.


--Daniel

You've gone to a lot of effort to twist it to suit your personal view. You said losing something is dishonest...now prove it rather than making up scenarios that suit you. Btw "lost" could mean any number of things that could include misplaced, inadvertently left somewhere or lost.

Regards
Hugh

[HughC]

Hi Daniel,

I think it's just about "full time" on this, it's run it's race and now rather petty. You've argued your points very well with precision to detail,an impressive display!! I look forward to discussing other issues with you in the future.

Regards
Hugh

[david i]

Hi Hugh,

I will add merely as an aside that PCA prior to a month ago had no user agreement pertaining to public domain materials. Even to extent that a user agreement might impact a legal case, no one with active membership prior to about three weeks ago has a user agreement with which to contend.

I note that Jon and Danny certainly have inspired the expansion of offerings of public domain materials to pen collectors.

regards

-d

[HughC]

Hi Hugh,

I will add merely as an aside that PCA prior to a month ago had no user agreement pertaining to public domain materials. Even to extent that a user agreement might impact a legal case, no one with active membership prior to about three weeks ago has a user agreement with which to contend.

I note that Jon and Danny certainly have inspired the expansion of offerings of public domain materials to pen collectors.

regards

-d

Hi David,

I noted when PCA introduced an agreement. I also note the only enforcement is restricted to the PCA site or membership, a logical and practical decision that emphasizes the ethical nature of the issue. Hopefully this expansion will include some colour catalogs from Sheaffer that cover my area of interest!!

Regards
Hugh

[kirchh]

Of course if I downloaded the PCA documents and placed them on a flash drive for storage and then "lost" it and "Mr ED" found said flash drive and put the contents on his web site he's not bound by any agreement that might exist between PCA and myself.....as Easterbrook pointed out.

Regards
Hugh

That scenario fails, because it involves dishonesty.

Try again.

--Daniel

What's dishonest about losing something ?

Regards
Hugh

Nothing. It's pretending to lose something, as you described in your example, that's dishonest.

But you knew that.

--Daniel

Will you kind enough to provide some examples of losing something as being dishonest to back this claim rather than just expressing a personal opinion that would appear to based on some basic misunderstanding of the concept of "lost".

Regards
Hugh

No need -- you have already done that.

In your example, you wanted to redistribute public domain documents to your friend who is named after a talking horse. However, the contract you entered into prohibits you from redistributing the documents. You want to "sidestep" that contract, as you put it, so you pretend to lose (as indicated by your placing the word in scare quotes) the documents so that your friend can pretend to find them. Via this dishonest act, you believe you have now enabled your friend, a third party not bound by the contract, to make free use of the documents.

Thanks for the example of how you propose to dishonestly sidestep the contract.

However, I was hoping you could provide an example of how the contract could be "easily sidestepped" without engaging in any dishonesty. So let's use the scenario you introduced as a starting point:

You want to redistribute public domain documents to your friend who is named after a talking horse. However, the contract you entered into prohibits you from redistributing the documents. You want to "sidestep" that contract, as you put it, so you [fill in this part]. As a result of your actions, which are not dishonest, you believe you have now enabled your friend, a third party not bound by the contract, to make free use of the documents, and you have not violated the contract to which you are a party.


--Daniel

You've gone to a lot of effort to twist it to suit your personal view. You said losing something is dishonest...now prove it rather than making up scenarios that suit you. Btw "lost" could mean any number of things that could include misplaced, inadvertently left somewhere or lost.

Regards
Hugh

Incorrect on all counts. I didn't twist the example you provided; I merely repeated it and commented on it.

Of course, I didn't say "losing something is dishonest," as you would know if you'd actually read what I wrote. But, yet again, you didn't, which is clearly your general approach to discussion. Of course, you will be unable to provide a quote of mine that supports your false claim.

I didn't make up the scenario; I confess that I copied it from someone else who put it forth here (http://fpgeeks.com/forum/showthread.php/8112-Public-Domain-Pen-Documents-Now-Online?p=94916&viewfull=1#post94916). If you don't like it, blame him, and come up with a scenario that you consider fair.

In the scenario you laid out, you attempted to sidestep the contractual restriction on distributing the received content to your friend by pretending to lose it (thus your use of "lose" in quotation marks) and having him find it. As I explained, that involved dishonesty on your part, so it does not qualify as an example of how the contract could be "easily sidestepped" without engaging in any dishonesty.

I've provided a template that is identical to the example you concocted, except I omitted the part where you engaged in dishonesty, and I asked you to fill in the missing part with honest actions to complete the example:

You want to redistribute public domain documents to your friend who is named after a talking horse. However, the contract you entered into prohibits you from redistributing the documents. You want to "sidestep" that contract, as you put it, so you [fill in this part with honest action(s)]. As a result of your actions, which are not dishonest, you believe you have now enabled your friend, a third party not bound by the contract, to make free use of the documents, and you have not violated the contract to which you are a party.

Apparently, you cannot complete this example. The meaning of your failure is clear.

--Daniel

[kirchh]

Hi Daniel,

I think it's just about "full time" on this, it's run it's race and now rather petty. You've argued your points very well with precision to detail,an impressive display!! I look forward to discussing other issues with you in the future.

Regards
Hugh

I agree insofar as I believe I have successfully countered every one of the points you raised. Thank you for your compliment; however, you will forgive me if I choose to decline to engage you in discussions in the future, given the extremely, shall we say, inefficient nature of our interaction.

Best --
--Daniel

[HughC]

*cough, cough*

In post 36 I said "I just read all that on the PCA site, unfortunately means nothing except reinforcing the ethical issues."

The said terms and conditions:

"The PCA has assembled and continues to augment a substantial library of pen related materials for the use of its members. Some of this material is protected by copyright, and some of it is in the public domain. We have not classified any of this material one way or the other, and so, like any user of library materials, each member accessing the library must take prudent precautions to determine whether and to what extent the proposed use of the materials is permitted under the copyright laws of the US or the member’s country.

As to materials that are not protected by copyright, the PCA stresses that its efforts to acquire, upload, classify and make these materials available are substantial, and that making them available to members is a key benefit of PCA membership. Those benefits and the willingness of PCA volunteers to do this work, are diminished when members make materials available to non-members by indiscriminate reproduction or posting to public websites.

It is therefore the PCA’s policy, which you as a member must acknowledge and agree to when you access the library [for the first time from any particular IP address], that PCA library materials are for the exclusive personal use of PCA members. Except for short quoted excerpts, therefore, you agree that you will not without the express written consent of PCA, copy these materials except to your own computers or similar devices, print more copies than you will use for your personal information and research, or distribute, email, upload or otherwise disseminate them to, or where they may easily be accessed by, non-members. PCA may suspend or terminate access to the library or, in case of repeated abuse, terminate the membership, of any person who, having accepted these terms, violates them or facilitates their violation by anyone else. A member will be responsible for the actions of anyone using the computer or device from which access to the PCA library is obtained."


I leave it others to decide if this emphasis the ethical issue or a legally enforceable contract. Likewise whether this a the practical position or one backed by the option of legal action. This was the main point in question so I'll leave it to others to decide who in this thread suggested a practical "real world" approach as the only viable option.

In so far as the discussion went I consider it more an exercise in fleshing out all points and options, rather than an "I won, he lost" type of debate, which I believe it did achieve. If the process of achieving this is considered as inefficient so be it.

Regards
Hugh

[david i]

Maybe a month until blast off for the Big Disk.

-d

[david i]

I still hear the bleating of Aspergerian sheep.

-d

[david i]

Tactic 16 from the Losing Debater's Manual: "I choose to decline..."

heh.

-d

[mhosea]

Indeed, Hugh, the whole debate has been moot with respect to the PCA's specific situation for quite awhile now. :)

[Jon Szanto]

Tactic 16 from the Losing Debater's Manual: "I choose to decline..."

Be sure to include a scan of the Manual along with all those other important documents.

[david i]

I really must get around to gathering the various losing tactics into an integrated tome. The demand has been shocking ;)

-d

[david i]

Interesting thing, as an aside, is that Danny has had personal worries (I'm not sure they qualify as anxieties) about copyright law/policy going back to 2005. I still have his charmingly worried email from around 2005, regarding his interactions with Lion and Pen. Chewy stuff, really.

regards

David

[david i]

And, perhaps to wrap up, I offer the link to the five page thread at Fountain Pen Board, to explore new pennant editor Jon Veley's views of people who don't join the PCA and his beliefs-- such as they are-- about David Armstrong's cited uploads of catalogues to Archive.org.

One thing made clear is that PCA has no legal basis for complaint regarding external distribution of public domain pen literature copies.


The attack in that thread on Paul Erano, prior editor of pennant, now publisher/editor/owner of Fountain Pen Journal, one who does not make negative public comments about anyone and who indeed took pains earlier when he still edited pennant to trumpet Mr. Veley's published collection of what I am told is (get this) mostly public domain pen patents... is concerning.

It is a nice thread to absorb in association with this one, and perhaps is a portent.

FOUNTAIN PEN BOARD thread about catalogue copy trademarks (http://fountainpenboard.com/forum/index.php?/topic/6174-public-domain-pen-documents-now-online/)

regards

David

[Jon Szanto]

...one who does not make negative public comments about anyone...
An admirable trait, in short supply. People would do well to follow his lead.

[henkm]

I really must get around to gathering the various losing tactics into an integrated tome. The demand has been shocking ;)

-d
But do you intend to release it in the public domain?

[Farmboy]

I really must get around to gathering the various losing tactics into an integrated tome. The demand has been shocking ;)

-d
But do you intend to release it in the public domain?
I believe I have located a very early copy of the LDM. Said copy is certainly a 1st edition and may well be a first printing!

Due to the asking price I will make arrangements to see it before I purchase it.

I will of course when the time comes.

[david i]

I really must get around to gathering the various losing tactics into an integrated tome. The demand has been shocking ;)

-d
But do you intend to release it in the public domain?

Probably not. Following the lead of my friend Stephen King, I was considering accepting a $500,000 advance. I need to buy a few more pens.

-d

[david i]

...one who does not make negative public comments about anyone...
An admirable trait, in short supply. People would do well to follow his lead.

We do have hopes for you ;)

Perhaps we should explore Dan's decade-long concern with copyrights. I still have the material...

-d

[david i]

While getting back to the core points, I've cheerfully noted that I have not yet gotten my distribution of 500+ digital documents that will further enhance pendom.

Best to use my PO Box mailing address.

T


Sorry it took awhile. I guess the game now is back in play, getting back to core points ;)

-d

[david i]

I've been working with Rick Krantz and with others to come up with an engaging name for the collection. Soon on that, I hope.

-d

[david i]

Maybe Todd or someone else can say something, so Danny can stop crying in his soup, unable to respond ;)

-d

[FredRydr]

Not interested due to dubious motive.

Fred

[david i]

And.... off to the races!

-d

[david i]

When I thought maybe Todd would chime in, I didn't realize I was invoking a famous fountain pen.

... get it?

-d

[Rick Krantz]

I've been working with Rick Krantz and with others to come up with an engaging name for the collection. Soon on that, I hope.

-d

Ultimately, I hope it's something nice, all kidding aside. Love it or hate it, agree with it, or not, I think the fact that it is now available will increase interest in the hobby. It will bring new material out of the woodwork, and hopefully it will be something that grows and benefits the whole hobby. information exchange in this hobby has so greatly changed from typewritten and photo copied stuff to multiple realtime message boards. I'm hopeful that this means of archive and distribution lasts for a long time. Love him or hate him, I think David moved the hobby a few steps into the future. I'll probably get burned at the stake or shunned from agreeing, or by association, but I just don't care. I love this hobby for all of the unique individual personalities, the diversity in how people collect or use, and the fact that anyone interested can access it at whatever comfort level they are able to engage at.

[david i]

I've been working with Rick Krantz and with others to come up with an engaging name for the collection. Soon on that, I hope.

-d

Ultimately, I hope it's something nice, all kidding aside.

I thought you liked it? :p

[Rick Krantz]

I've been working with Rick Krantz and with others to come up with an engaging name for the collection. Soon on that, I hope.

-d

Ultimately, I hope it's something nice, all kidding aside.

I thought you liked it? :p

While I can certainly appreciate the humor of some of them, yeah, they were a good chuckle at other's expense.

In the end, I think you should find something fair and balanced for a name.

I guess reflecting on some of them, I wouldn't be so cool about it, so I probably wouldn't myself, and keep in mind, I am pretty mild mannered and don't let a lot get to me.

that's me though, you will have to find whatever you think is best.

If you really want a good name for it, let me know, I will do my best to come up with a few that won't offend, or piss anyone off, and present the whole database in a positive light.

[Jon Szanto]

While I can certainly appreciate the humor of some of them, yeah, they were a good chuckle at other's expense.

Noted.

[Rick Krantz]

While I can certainly appreciate the humor of some of them, yeah, they were a good chuckle at other's expense.

Noted.

Jon,

and admittedly, I am a guilty participant in what was discussed privately between me and David.

and I recognized that our conversation was at other's expense (which Jon Szanto did not note....)

I did indicate how I felt about it ultimately. (see my previous post)

It isn't a proper thing to do, and where me and David probably differ (but I certainly hope we don't), is I am well aware of the downside of it. I would not go down that road, especially with something for public distribution.

I am hopeful that David takes this opportunity and does something positive.

Thanks for noting this Jon, much appreciated effort for what I feel you tried to take something I wrote, and use a small piece to be self serving.

I'm disappointed.

Rick

[Jon Szanto]

Thanks for noting this Jon, much appreciated effort for what I feel you tried to take something I wrote, and use a small piece to be self serving.

I'm disappointed.

Well, please take this sincerely: I feel badly. Even before you penned that above, you will have received an email from me. When I wrote the above, with the "noted", I was not intending it to reflect on you, Rick. AT ALL.

I can see in the context, it probably came off that way. It has been building, my ire at much of this, and I was speaking more to David's choice of those type of descriptions, being at other's expense, and not your chuckling over it, or posting over it, or whatever.

My private note to you says more than all this does, but I am very, very sorry that my comment came off wrong. You are one of the people I truly admire in this community, and it would bother me no end if I had ruined the relationship, if even in a small part.

Very big public apologies for my ham-handed handling of this.

[Rick Krantz]

Jon, apology accepted.

I put you back in my will.

RIck

[FredRydr]

When I wrote the above, with the "noted".... It has been building, my ire at much of this, and I was speaking more to David's choice of those type of descriptions, being at other's expense....

Jon, I recognized what you meant, and you should be confident that anyone familiar with David Isaacson's internet conduct understood you as well. No problem, Rick!

Fred

[david i]

More the merrier. Keep up the momentum ;)

-d

[D Armstrong]

Heh. Momentuming away! I thought this thread had died long ago. And yes, David's use of online tact is legendary.

My two bits worth, resurrected from last year: claims of proprietary rights to public domain works is unethical. Some qualified experts refer to it as "copyfraud"*, and this specifically includes claims made by those profiting by serving as gatekeepers. And this is in the US, as well as elsewhere.

Please keep me up to date with developments as to your cd collection. And let me know if I can help in any way. You realize you could just upload it all to archive.org and let them do the dispersal? They are pretty good at it.

* http://ijoc.org/index.php/ijoc/article/viewFile/1655/766
http://pqasb.pqarchiver.com/infotoday/doc/221095606.html

[kirchh]

My two bits worth, resurrected from last year: claims of proprietary rights to public domain works is unethical. Some qualified experts refer to it as "copyfraud"*

* http://ijoc.org/index.php/ijoc/article/viewFile/1655/766


False, as anyone who has actually read Mazzone's book would know.

--Daniel

[david i]

Anyone who thinks he has a case is invited, indeed dared, to file it.

Warmest regards

David

[david i]

Heh. Momentuming away! I thought this thread had died long ago. And yes, David's use of online tact is legendary.

My two bits worth, resurrected from last year: claims of proprietary rights to public domain works is unethical. Some qualified experts refer to it as "copyfraud"*, and this specifically includes claims made by those profiting by serving as gatekeepers. And this is in the US, as well as elsewhere.

Please keep me up to date with developments as to your cd collection. And let me know if I can help in any way. You realize you could just upload it all to archive.org and let them do the dispersal? They are pretty good at it.

* http://ijoc.org/index.php/ijoc/article/viewFile/1655/766
http://pqasb.pqarchiver.com/infotoday/doc/221095606.html

Hi Dave,

Thanks for posting. Rumor has it danny was plotzing not being able to reply before..


I was led to Drop Box the files, thanks to discussion on Facebook. One play with Archive led it to lose all its file names. It is well known of course that I have no computer skills. That we have a world class Facebook discussion group for old pens (see my signature below), that Fountain Pen Board continues to host serious old pen chat (after the FB group hits a looming number, I plan to reinvest a bit more energy-- lately diverted to Facebook-- back into the message board), that Vacumania is among the top retail pen sites, and that (I sort of webmaster) the Fountain Pen Journal is rapidly rising the Google charts for pen magazines... continues frankly to amaze me. Other people's tech. My special touch.


The link to the Catalog download offering is hosted at Vacumania.

http://vacumania.com/website/catalog_downloads.html

I need already to tweak it. Drop Box will work for the whole thing I think, if your dropbox account is $10 Pro. Can ZIP load the whole thing even if not a DB member, but the Zips cap out at 1gb, so you must open the six folders and do each full folder (not the 600 files thank heaven) rather than all six folders of once.

The response has been huge. To those who at FPB expressed concern that publication of files involving others' "sweat of the brow" would squelch interest in making such offerings at all, I can offer only the anecdote that a grateful recipient three days after the offering sent me a cache of Cross Fountain Pen catalogue PDFs to add to the pile. I've added that as the 6th folder to the Drop Box hoard.

regards

-d

[david i]

I offer this toast to one of the inspirations for the project.



https://www.youtube.com/watch?v=E-9YAnJXyGY


regards

David

[david i]

Some testimonials:


Rick Krantz Here's my testimonial....

Thank you for taking a progressive stance on the pen hobby and the way we share information. Rather than using this information for leverage, you chose to freely share it as it should be shared. I have a few items I am sure I can offer to upgrade what you have, or just add more to the collection. I still think this is a landmark achievement for the hobby as a whole, and will spur a huge surge of interest in the hobby.

Thomas Overfield Thanks David. This is indeed a great service and a selfless one.

Maria Andersen Wow, you can save this to your DropBox! T hank you so very very very much, I really appreciate this big time! grin emoticon heart emoticon heart emoticon Thank you so much for posting David Isaacson

Jason Palma Woo hoo!!! Many thx:)

Kailash Ramchandani Thanks David... downloaded 3.64GB via Dropbox... Much appreciated!

Dan Caddell Superb!!! Will download as son as I get back to my desktop. Thank you David Isaacson!!!

Sandy Young This is fantastic! Thanks very much!

Barrie Parker David, this is a wonderful resource, thank you. I have downloaded two items so far, quick and simple.

Alain Bossard Thank you very much David for sharing such valuable info !

Ignacio Gómez Fdez de Arcaya Thank you very much for this unvaluable stuff, David. By the way ... what about magazine's next issue ?

Norwood Bodie Thanks David!

Ed Akers Totally awesome information David. Thanks for sharing

Ivan B Schrodt Thanks for doing this. I managed the zip by doing the folders individually, except Other which had to go to Dropbox. I did not have enough room for all in Dropbox.

Mith Raven THIS IS AWESOME!!!!!! (sorry for the caps....)

Ed Hodson I've had Dropbox for years but never messed with until now. Having all of this information instantly available to me on my phone or on any computer in the world is priceless. Thank you SO much, David.

Kenneth T Hertz David, what a treasure trove!!! Just downloaded by my Dropbox. Could not have been easier. Now to begin the journey. What an extraordinary opportunity. Thank you so much!

Alfonso Mur Dear David, Chapeau, my friend!!! I will download it as soon as I get back home. Regards

Steven S. Long Excellent work! It's not of any immediate use to me because it doesn't seem to include any Cross catalogs, but sooner or later I will probably need it for something. Databases are always worth having. like emoticon

Steven S. Long Coolness. I have some Cross catalogs I can send if you like, though they're relatively recent ones (1990s and 2000s).

Bob Corrigan Well done and thank you.

Tim Hofmann This thing will likely continue to grow. Hurrah for progress!

Ignacio Francisco Suazo Meza muchas gracias por este regalo,Thank you very much for this gift,

[Jon Szanto]

Be certain to email those testimonials to John Jenkins, David. I'm sure he'll appreciate all your accolades.

[david i]

I'll leave that to you and Jon Veley. Jon-n-Jon. Irony. After all, this was his idea, and you seem very good at sending private emails. It could be like a super hero team-up.

Cheers

-d

[Jon Szanto]

I'll leave that to you and Jon Veley. Jon-n-Jon. Irony. After all, this was his idea, and you seem very good at sending private emails. It could be like a super hero team-up.

I don't know Jon Veley, so it wouldn't make much sense. I used to write to John Jenkins occasionally with questions on pens and what-not, but it was through private messages on FPB. He isn't there any longer, unfortunately.

[david i]

I'll leave that to you and Jon Veley. Jon-n-Jon. Irony. After all, this was his idea, and you seem very good at sending private emails. It could be like a super hero team-up.

I don't know Jon Veley, so it wouldn't make much sense. I used to write to John Jenkins occasionally with questions on pens and what-not, but it was through private messages on FPB. He isn't there any longer, unfortunately.

I could introduce you. I hear he is trying to network.

People do come and go. Lots of people on FPB aren't on FPN anymore, for example.

regards

-d

[david i]

I have been offered more paper of late.

Finding the time to scan/photo is an issue the next couple months.

One fellow has some PDFs.

regards

-d

[david i]

Recent conversation to which I was pointed at Reddit. Had to join to see it. Not enamored with the format, but I didn't really like Facebook for a long time either (still not sure I do). I did manage to file a couple comments. Forgive the snark about prices, but when Brandon pops up (long story, look at FPB and FPG for it), one must be direct. Anyway, the info is percolating.

[–]HansSachs[S] 2 points 17 days ago


David Isaacson of Vacumania.com recently posted a huge collection of pen catalogs, brochures, and pamphlets available for free on his website. This is a great resource for all collectors and I recommend you take a look.

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[–] _bestbuy 2 points 17 days ago


Thanks for the share!

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[–]anything_bro 2 points 17 days ago*


Woah I just opened up some of the Waterman catalogs and they are very cool. While they're not all super readable, it's incredible to read a document for a pen I own which is over 70 years old.

permalinksavereportgive goldreply

[–] _bestbuy 2 points 17 days ago


I feel you brother, my Waterman is from the late 70s and it was pretty damn cooling seeing it just as anyone else would have seen it when it was new.

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[–]Diabolical_Engineer 2 points 17 days ago


I think I just found a new grail pen. I was looking at a 20's John Holland catalog, and they made a combo. I think I need to find one. It's not going to be cheap, I fear.

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[–]B_Engineer 2 points 17 days ago


Ephemera values go down?

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[–]david_i_vacumania 1 point 1 day ago*


Actual ephemera value rises. Only a pubescent pseudo-engineer might think otherwise. Just sayin'...

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[–]HansSachs[S] 1 point 1 day ago


I must agree that the real thing only gets harder to find and more expensive as time passes.

I hope you don't mind me posting your compendium here - it's terrific!

permalinksaveparentreportgive goldreply

[–]david_i_vacumania 1 point 23 hours ago


I don't mind at all. Once this became "out there", I have no hold on it. The politics behind it are a bit... interesting... but that's long done. The more who see this and access it, the better.

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[–]HansSachs[S] 1 point 11 hours ago


Good to see you here on reddit! I remember well a certain discussion last August that was as you said "interesting." I have sent your link to all of my friends as well and I hope the collecting community enjoys your efforts. Thanks for putting it together.

[Laura N]

Brandon is on Reddit? As B_Engineer?

What is it about fountain pen land? They won't go away.