Friday, July 8, 2022

A June 27th, 2022, Letter to the Historical Society Regarding the Possible Consequences of Copyright Infringement.


 Copyright!

You Can Ignore It

Until a Subpoena Says You Can’t.

by Wally Lee Parker


          As you might imagine, it’s been a tough month-and-a-half at my house (since I wasn’t here most of the time, that viewpoint’s somewhat metaphoric in nature).  In early May I had just finished printing up my last issue as the Mortarboard’s editor, I’d put together the magazine version as well as the multiple issue bound version, that being Collected Newsletters #50, and had gotten both boxed up for Bill Sebright when I had several stroke events in series – events I remember very little of except that I was at home and needed to call my son for assistance.  I wish I could say I hadn’t seen something like this coming.  But for the last half year I’ve had an intuitive impression that maintaining the clockwork routine necessary to keep the Mortarboard on schedule was something I probably wouldn’t be able to continue for much longer – said resulting in me notifying the group via my notes as submitted at the society’s February 2022 meeting and subsequently published in the March (12th) 2022 Mortarboard that I would be resigning as editor, effective May 14th, 2022.  That premonition and subsequent timeline proved factual, and the day the May Mortarboard was officially released was just one of a drowsy undifferentiated cluster I spent confined at Sacred Heart Hospital.

          I still don’t have the timeline straight, but it appears my daughter, over from her home in Gig Harbor, was the one that handed society president Bill Sebright the box of May Mortarboards and such when he stopped at my home in north Spokane.  I spent the rest of May in hospital and like facilities and was released home on June 8th.  I’ve suffered a constant barrage of home-health people since, and only now am getting anywhere near (and incidentally not that near) my normal.  The rest of summer - and I expect well into autumn - is going to be a bazaar of various procedures, supposedly resulting in a stabilization of my condition, said condition being a mixture of cardiac, blood pressure, and cerebral related problems.  The possibility of making it through without further damage isn’t certain – though not overly gloomy.

          I’m just going to mention a couple of things related to the deluge of issues I’m dropping on the new editor.  The new editor also works for a living.  I’d been retired for a full year when I initiated the monthly Mortarboard.  Prior to the Mortarboard I’d also pasted together several years of a family history newsletter of somewhat similar content – meaning none of the problems and methodologies used in publishing a newsletter were new to me.  I’ve no idea what’s true of the society’s new volunteer in that regard, other than the idea that she’s in the printing business.

Regarding laying up the first few issues of her version of the Mortarboard, I suggested I’d help where I could (it turns out that was way too optimistic), but also offered some alternatives she might want to consider.  For one thing, there’s no reason the Mortarboard must be published monthly.  As long as all unpublished-to-date society minutes are clustered in each new edition, going to press every two or three months is a possibility.  And also, there’s no reason the Mortarboard has to be a one-person operation.  If there were a willing staff, the editor could take the more traditional role of managing, while the staff looked after the departments and such.

From the beginning the Mortarboard was designed to be built by folding 8½x14 inch sheets of legal paper in a manner that each would create two leaves with four pages.  Every extra sheet of paper added would result in four more pages.  As a practical matter, since said sheets would all have to be saddle bound by stapling down the center fold, the resultant signature would need to be limited in thickness, so I put an arbitrary limit of 24 pages (six sheets of paper) for any given issue of the Mortarboard, and 64 pages for any given issue of the Collected Newsletters – said collection simply being a somewhat more formal saddle-bound version of the last several Mortarboards.  That system allowed the Mortarboard to expand or contract its page-count month to month in response to the amount of material being submitted for print.  And then to be reprinted as Collected Newsletters - a purchasable format containing all the magazine's back issues.

We could have worked through all these points by now had not that cluster of small arteries on the left side of my brain decided to rupture as well.  As for any suggestion that my brain could be blamed for every negative thing that’s happened inside or outside the administrative wing of the historical society in days past, that’s certainly an argument that can be made.  After all, though I’m now just another member with no executive powers whatsoever, I’m sure some of my trouble-causing essence has seeped into the group’s underlying fabric.

          For example, I’m going to mention a phrase most amateur editors should dread.  Copyright” – or more formally, “intellectual properties” - this being a burr of widespread irritation among most everyone involved in publishing.

Since we are involved in condensing local history into print, I’ll try to place my assertions regarding our responsibilities when it comes to intellectual properties within a bit of historical context, and I would recommend that any argumentative conversations or illuminations regarding the accuracy of such be drawn from verifiable sources rather than common knowledge – common knowledge being a source any practiced historian, amateur or otherwise, should have discovered to be consistently unreliable.

          It seems the founding fathers of these United States, in order to promote within the new republic an environment conducive to an intellectual bloom of the arts and sciences, wrote into the Constitution of the United States of America a provision that directed the people’s congress to create a statutory system by which citizens who draw up from their own inventiveness things such as works of literature, scientific and industrial processes, and all sorts of other things that might advance said arts and sciences, be provided by law with a specified period of time during which they would have the right to exclusively or by contract profit from the manufacture and/or other monetary returns any such creations generate.  First codified in the Patent Act of 1790, these codes have been a work in progress ever since.  Their purpose, as clarified in the revised Patent Act of 1793, is to provide statutory protection for (quote) “any new and useful art, machine, manufacture or composition of matter and any new and useful improvement on any art, machine, manufacture or composition of matter,” (end quote) with a bias toward protecting the interest of the inventors and/or owners of such described “art, machine, manufacture or composition of matter.”  Knowing the nature of lawyers, it would be reasonable to assume that the legal arguments on this and that point left dangling within said statutes began almost immediately, and clearly in the ensuing 231 years such contentions were often and still are being bounced about whenever some degree of profit by legal or otherwise manipulation of such seems possible.

          I have heard the word communism used in relation to the concept of copyright in that it might be inhibiting to free speech - especially if said string of free speech happens to have been created and therefore, due to still being within the age limit imposed by its registered date of creation, owned by someone else.  After all, copyright does contend that ideas expressed as specific strings of words can be owned – novels, short stories, newspaper articles, poems, lyrics.  But like a lot of things when viewed from a base build on a solid bedrock of willful and self-serving ignorance, actual meanings often get muddled.  The concept of intellectual property is propped against one of the foundational roots of capitalism – in that it asserts that ideas, processes and so forth can be privately owned.  What makes this genius is that within the statutory system initiated by our founding fathers said copyright eventually dissolves, and title to said intellectual property becomes the common property of everyone.  And as these bits of once private property become part of the public domain, they continue to serve as the founding fathers intended by enriching an environment supportive of an ongoing intellectual bloom within the collective domain of the publicly owned arts and sciences.

          It seems those founding fathers were a lot sharper than certain moderns give them credit.

          Now if you’re a speed reader, and only read the first sentence of every paragraph, or every other line in said paragraph, or simply consume the essence of each paragraph by inhalation of the page’s psychic essence, please stop.  Copyright – like anything heavily peppered with fact - is not a concept intended for psychic consumption.  And worse yet, if you’re intent is to find some easy way around 231 plus years (and soon to be 232 plus years) of legal president, and ignoring one or more such legal principles draws the ire of someone who happens to own title to a piece of intellectual material you are thieving – most likely such thieving being generated by little more than limped laziness – it’s within the realm of possibility that you’re about to find out what it’s like to be summonsed into a civil courtroom at the behest of some entity – person or corporation - who has all the spuds in their potentially very deep pockets and are justifiably as mad as hell.

          If someone thinks that the respondent’s side of a courtroom is a good place to be, said someone, and all that have advised him or her, are blithering idiots.  To get there, all you need do is keep ignoring the strictures imposed by copyright.  You might ride through your years of publishing various materials just fine, with nary a complaint.  If you do, then I must be wrong, and you must be right – or lucky (and I’d vote for the latter).  But say a subpoena does arrive.  From what I can tell, the consensus among those who say copyright is crap is that at first you should act offended, and then treat the whole thing as a joke.

Now the wise thing to do – and the last thing anyone in the above camp would consider - would be to obtain the services of a lawyer with knowledge of copyright.  One might suspect that at some point there would be a necessity for some contact between opposing judicial combatants, so I’d hazard the suggestion that it’d be nice to have someone other than a jingoistic idiot representing your side.  This of course is going to cost money, and quite possibly an appearance in court during which you will need to explain to the satisfaction of a legal system that has been dealing with issues of patent and copyright for something over two and a quarter-centuries why the regulations you’ve infringed upon are essentially communistic hornswoggle therefore deserving to be ignored.

(“But I don’t understand.  When we left the tavern last night our arguments sounded bulletproof.”)

My last little bit of advice regarding any appearance before the legal system on a charge of copyright infringement would be to bring a checkbook.  No matter how you slice it, someone – and most probably the infringer – is going end up having to pay.  And even more importantly, it’s unlikely to stop there.  In the society’s case the potential fallout is the destruction of a once viable historical group, a destruction that might include every bit of effort everyone has poured into the job of collecting, cataloging, and displaying local history over years past.

Desirous of leaving one small glimmer of hope, I’m going to suggest something be prominently added to each issue of the society’s publications in order to clarify the society’s position on copyright, “It is the responsibility of every author submitting materials – quotes, diagrams, images, artwork, maps, etc. - containing content created by persons or entities other than the author him or herself, to secure all necessary copyright permissions for the use of said materials in the work the author is submitted to us for publication.”  While reason and prudence will still need to be applied in all cases, this hopefully shifts the burden of obtaining clearances for materials that may have pre-existing copyrights from the society’s editor and his or her staff to the author submitting such materials, which is exactly where such a burden deserves to be.

Since I have no professional claim to being a legal, the above is just my non-legal opinion.  And it’s not suggested here as a simple remedy to the due diligence publishers should always exercise when evaluating materials being submitted for publication.  The above is a determination derived from years of paddling around in a complex issue that no one seems to fully understand, and due to such ambiguity somehow generates questions that often can’t be fully settled in any way other than a judgement made by a judge and/or jury – and sometimes not even then.  All this would suggest that those engaged in publishing in public format take the issue seriously and avoid as many related entanglements as possible by maintaining an extremely conservative attitude when dealing with issues of copyright.

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