Showing posts with label Disclaimers. Show all posts
Showing posts with label Disclaimers. Show all posts
Sunday, September 13, 2015

In the Fight Against Piracy, Are Curses the Answer?

Outside of a Dog #5
Outside of a Dog is an irregular, and sometimes satiric, series that features publishing wisdom from a variety of classic and contemporary sources. As a lawyer, I'm fascinated by the economics and entrapments of publishing contracts and cases. The title is borrowed from Groucho Marx, who famously said, "Outside of a dog, a book is man's best friend. Inside a dog, it's too dark to read." Like the challenge of reading inside a dog, this collection records the fact that authors and publishers trying to strike a balance between literary merit and financial need, labor in the dark without any economic certainty.

Curses! Gory, gruesome, nasty, cautionary, score settling notices drafted by Egyptian priests, were designed to stop book thieves and plagiarists in their tracks. The copyright notice was created by Congress in the 19th century. It says to those who notice, "I own this" (with reservations).

What takes place within us when confronted by a curse or a copyright notice?  Curses conjure up fear.  You read the text carefully and are forced to reflect on what you are reading - and your mortality.  The copyright notice is seen by most as a toothless warning of remote judicial remedies.  It doesn't scream.  So, it doesn't register.  Plus, it doesn't help that the copyright notice symbol resembles a frown emoticon resting on its side.  

Proper Usage

To get the most out of a curse (or a copyright notice), it must be displayed prominently.  With a curse, knowing you've been cursed, makes the curse more potent.  Similarly, copyright law provides for more potent penalties against willful or knowing infringers, than innocent ones. 

Instead of monetary damages designed to make the plaintiff whole, curses express the wrath of a vengeful god.  Crushing, killing and strangling, rather than monetary damages, are brought to mind when you open an illuminated manuscript.  That is precisely why ancient warnings that bear down on one's mortality, trump copyright notices.

If you are looking for inspiration, below are some classic curses, all of which are in the public domain.      

In Biblioclasm
author (and professional medieval illuminator) Marc Drogan, identifies the following as the most famous literary curse.  I still works.
"And if any man shall take away from the words of the book of this prophesy, God shall take away his part out of the book of life, and out of the holy city, and from the things which are written in this book."  -- Revelations, 22:19
The Christian church didn't have a monopoly on literary
Moshe Ben-Asher Codex
curses.  Medieval Jewish scribes issued stern warnings against modifying even a single letter of the Hebrew bible, since each of the 304,805 letters that comprised it had divine meaning.  The following lines written C 984, appear at the end of the
Moshe Ben-Asher Codex, the oldest medieval Hebrew bible:

"Whoever alters a word of this mahzor or this writing or erases one letter or tears off a leaf . . . may he have neither pardon nor forgiveness; neither let him behold the beauty of the Lord.  He shall be like a woman in impurity and like a leprous man, who has to be locked up so that his limbs may be crushed, the pride of his power broken, his flesh consumed away that it cannot be seen, and his bones that were covered made bear."
The warning associated with the Moshe Ben-Asher Codex concerns rights in the text, not ownership of the copy. It can be interpreted as a early form of copyright control.  Under copyright law, the exclusive right to adapt resides with the owner of the text, not the owner of a particular copy of a book.  Personally, I think disgorgement of an infringer's profits (a remedy under copyright law) better fits the crime than broken bones or necrotizing fasciitis.  But, that’s just me. 

Medieval colophons, the antecedent to the copyright notices, appeared, initially, as concluding statements at the back of manuscripts.  The colophon would indicate the work's title, the scribe or copyist (not the author), date and place of copying, and contain either a blessing or a curse.  So, while a direct connection between the colophon and copyright notice may appear fuzzy, the common assertion of ownership rights, and threat of consequences for those who violate those rights cements the connection in my mind.  

Geoffrey Galister, in the Encyclopedia of the Book (Oak Knoll/British Library), explains that by the early 16th Century, the practice of placing a colophon at the end of a book was largely abandoned. Instead of the scribe's name appearing at the back of the book, the printer's name (and its royal license to sell the work) appeared on the title page where it could be more easily seen.

By the early 18th Century, secular threats of legal
Statute of Anne (1709)
action supplanted curses.  With the passage of the Statute of Anne in 1709, England's first copyright act, 
the regulation of unauthorized copying was transferred from god's exclusive jurisdiction to her Majesty's courts.  In 1802 the U.S. Copyright Act was amended to require a notice be placed on each copy of a work.  For 187 years, until the notice requirement was abandoned, if a work was published without the proper form of notice, it was cast down into the public domain.  While we live in post-notice world, notices are still wildly used, but, their significance is information, not legal.  They announce who owns the copyright.           

Like colophons, which list special aspects of the book, such as the paper variety or type style used, copyright notices generally appear on the title page, or reverse of the title page. The copyright symbol, the familiar © followed by the date and name of the owner (not necessarily the author), often comes with a nasty warning, not a curse.   Here's a mildly threatening one: 
ALL RIGHTS RESERVED.  No part of this book may be reproduced in any form by any electronic or mechanical means (including photocopying, recording, or information storage and retrieval) without the prior written permission of the publisher. 
Compare the polite "All Rights Reserved" legend found in close proximity to many copyright notices, with your average illuminated manuscript curse.  If you were lent a manuscript and failed to return it, or made an unauthorized copy, you - and perhaps your forebears and children -- were forever cursed.  In contrast, a copyright notice is a yellow blinking light at the corner of Purchase and Purloin Streets.  Copyright notice or book curse?  A strong argument can be made for the latter. 

Before March 1, 1989, if a copyright owner failed to affix a copyright notice to a work, the work was ejected into the public domain.  Of course, a public domain work may still be covered by a protective curse.  This is another  advantage of a curse over a copyright notice - however, one that does not comport with strict First Amendment scrutiny.   

King Assur-bani-pal
According to Drogin, the oldest known book curse appears on cuneiform tablets found in the biblical city of Ninevah.  Like today's authors, Babylonian King Assur-bani-pal  (668–626 BC) wasn't just concerned with protecting against theft, but receiving credit for his work.  The French call it “droit moral” – an author’s right to defend the integrity of their work and the use of their name.   King Assur-bani-pal imprinted this form of notice on his royal records: 
"Whosoever shall carry off this tablet or shall inscribe his name on it, side by side with mine own, may Ashur and Belit overthrow him in wrath and anger, and may they destroy his name and posterity in the land."
The profound fear of being forgotten loomed as large in Babylonia as in nearby Egypt.  Removing the name of a king from a cuneiform tablet meant he never existed.  Much the same can be said for failing to credit a writer of a screenplay, whose livelihood (and footnote in history) depends on the works which bear their name.  

Whether a curse or an unobtrusive copyright notice, these admonitions are powerful starts to the reading experience.  Where does the power come from?  Fear.  

Monk, Christ Church
"May whoever destroys this title, or by gift or sale or loan or exchange or theft or by any other device knowingly alienates this book from the aforesaid Christ Church, incur in this life the malediction of Jesus Christ and of the most glorious Virgin His Mother, and of Blessed Thomas, Martyr. Should however it please Christ, who is patron of Christ Church, may his soul be saved in the Day of Judgment."

Before Johannes Gutenberg's invention of the printing press in the mid-1400s, books were precious objects worth fighting over.  Coveted by the wealthy elite, stolen in a prior era by marauding Norsemen, literary monks went to great lengths to protect their collections of valuable manuscripts.  Not only did they employ curses, but, they tethered their bibles to bookshelves and lecterns with chains.    

As the fifteenth century became the sixteenth, book curses underwent a change, becoming more secular, foreshadowing the birth of copyright as a device to secure the sale of copies, and protect the livelihood of authors and publishers.  German renaissance artist Albrecht Dürer invoked the wrath of the crown, not god, declaring in 1511:
Albrecht Dürer Print
"Hold! You crafty ones, strangers to work, and pilferers of other men’s brains. Think not rashly to lay your thievish hands upon my works. Beware! Know you not that I have a grant from the most glorious Emperor Maximilian, that not one throughout the imperial dominion shall be allowed to print or sell fictitious imitations of these engravings? Listen! And bear in mind that if you do so, through spite or through covetousness, not only will your goods be confiscated, but your bodies also placed in mortal danger."
A copyright notice threatens economic harm, while the strategy behind the black art of the curse is to attack the infringer's mind. Dürer's transitional curse succeeds at both tasks. 


Tensions between copyright law and freedom of speech aside, a serious dilemma exists. How do you effectively retaliate against digital pirates?  There are no good answers.  However, six-months after downloading a pirated copy of my book, The Copyright Permission and Libel Handbook: The Cursed Edition, Bonnie Foreman of Sheepshead Bay, Brooklyn was found dead in her home in front of her computer.  She expired around page 123.  Curse or coincidence?  I cannot say for sure.  I'm a copyright attorney, not a shaman.     

2015  - 2017 Lloyd J. Jassin. All Rights Reserved.   

Disclaimer / Curse: This article is protected by the Eye of Horus.  If you infringe this article, may you be seized by the neck like a bird, your head cranked off, and your carcass hung up to drain*. Please note that this article is not designed to give any specific advice concerning any specific circumstances. Readers are strongly cautioned to consult an attorney before consulting a practitioner of the occult arts.

*Adapted from a curse on the tomb of the courtier Biw at Sakkara, circa 2260 B.C.

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The Story of St. Columba: A  Modern Copyright Battle in Sixth Century Ireland
Books in Chains by the Late William Blades (1892) (full text version)
Biblioclasm:  The Mythical Origin, Magic Powers & Perishability of the Written Word (Rowman & Littlefield) by Marc Drogan.

Books and their Makers in the Middle Ages  (Putnam) by Geo. A. Putnam
Questionable Utility of Copyright Notice: Statutory and Nonlegal Incentives in the Post-Berne Era by TP Arden - Loy. U. Chi. LJ. 1992