"When Adam dalf and Eve span..."

This year, 2011, has been the 630th anniversary of the uprising of 1381.

Contradictions

In discussions of the computus, that is, the method for determining the date of Easter, one often encounters the erroneous statement that the Eastern Orthodox churches use precise astronomical computations to determine the date of Easter. For example, at this URL

http://www.saveandread.com/blog/?p=847

as recently as today I found the following:

The Orthodox church uses the same formula to calculate Easter, but bases the date on a slightly different calendar—the Julian calendar instead of the more contemporary Gregorian one, the calendar that is most widely used today. Consequently, both churches only occasionally celebrate Easter on the same day. Unlike the Western Church, the Eastern Church sets the date of Easter according to the actual, astronomical full moon and the actual equinox as observed along the meridian of Jerusalem.

This can be broken into two statements: (1) The Orthodox churches use the Julian computus, and (2) the Orthodox churches use precise astronomical computations.

These two statements contradict one another. One who sets the date using the Julian computus cannot at the same time set it using precise astronomical computations. And only occasionally do the two methods give the same result.

The statement that the eastern churches use precise astronomical computations derives from an agreement reached at a 1923 synod of eastern Orthodox bishops. Here is the report as it appeared in a standard reference work, the Explanatory Supplement to the Astronomical Ephemeris and the American Ephemeris and Nautical Almanac.

At a meeting of a Congress of the Orthodox Oriental Churches held in Constantinole in May, 1923, the Julian calendar was replaced by a modified Gregorian calendar...[in which] Easter is determined by the astronomical Moon for the meridian of Jerusalem.

This statement from the Explanatory Supplement is literally true. The Julian calendar, including its computus (also called a "paschalion") was replaced at the meeting in 1923. But it was never permanently replaced in practice anywhere else. Only the solar part of the 1923 calendar agreement has been put into effect, and even that has been controversial. Presumably the bishops, when they got home, found that the Julian computus (which was to be replaced by the lunar part of the 1923 proposal) was too old and traditional to change easily. Amost all the eastern Orthodox churches still use the old Julian paschalion. The reported exceptions are small dioceses such as Finland, which use the Gregorian computus.

However, some folk reading the report in the Explanatory Supplement with no knowledge of eastern Orthodox cultural politics appear to have naively assumed that what the eastern bishops decided had but put into effect. Hence was born the statement that the eastern churches use precise astronomical computations to set the date of their Easter, a statement that has taken on a life of its own and continues to be repeated, even though a simple check against astronomical facts could show that it is false.

In 2003, for example, the vernal full moon occurred at 16 April 19:36 Universal Time. The following Sunday was April 20th. This was Easter according to astronomical reckoning. The Gregorian Paschal Full Moon for 2003 (the 9th year of the 19-year cycle) was also April 16th, the same day, at least for some time zones, as the astronomical full moon. The Julian Paschal Full Moon that year was, however, on April 20th (Gregorian). Hence eastern Orthodox Easter that year was on the following Sunday, April 27th.

In 2006 (the 12th year of the 19-year cycle), the vernal full moon was at 13 April 16:40 Universal Time. The Gregorian Paschal Full Moon for year 12 is also April 13th. The following Sunday in 2006 was April 16th. However, the Julian Paschal Full Moon that year was not until April 17th Gregorian, so that eastern Orthodox Easter was the following Sunday, April 23rd Gregorian.

Some who try to explain these dates away might fall back on another canard, the Zonaras Proviso. They might try to claim that this proviso requires eastern Orthodox Easter to fall entirely outside the seven scriptural days of Unleavened Bread as computed in the present-day Rabbinic calendar. But a simple check will show that this year, 2011, the Hebrew calendar's week of unleavened bread runs from April 19th through April 25th. (Some in the diaspora will add an extra day, April 26th). Eastern and western Easter, however, are both on April 24th, 2011, within the Rabbinic calendar's days of Unleavened Bread. Hence the Zonaras proviso, even if it existed (in fact it does not except in the minds of canon lawyers) could not have this precise form.

Rufus Pollock et al. on the value of the public domain

Rufus Pollack has posted a draft (for it seems to be unfinished still) of his paper, co-written with Paul Stepan and Mikko Välmäkki, on the value of the public domain (PDF). The abstract can be found at

http://rufuspollock.org/2010/10/11/papers-on-the-size-and-value-of-eu-public-domain/

This is a study in a European context similar to Paul J. Heald's survey of American best-selling novels, which can be found at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=955954

Professor Heald surveyed works of fiction. Pollock surveys both books and sound recordings. For books he surveys a much larger sample than Professor Heald surveyed.

Back in 1998 I did a cursory survey of paperback song books, and found that incorporation of public domain content lowered the average price per book and the average price per song. As I surveyed these books, I quickly encountered problems of definition. What is a "pubic domain" song? What was a "public domain" book? My solution was to limit the survey to paperback books with piano-vocal arrangements. If more than 90% of the melodies in a book were public domain melodies (though the accompaniments might be copyrighted) then that book counted as "public domain" for the purposes of the survey, though obviously the book-as-a-whole and many of its components were under copyright. If more than 90% of the melodies in a book were under copyright, then that book counted as "copyrighted" for the purposes of the survey.

Pollock et al. deal with similar questions of classification. Is a book "public domain" if it is a public-domain novel but with copyrighted introduction and notes? The authors very reasonably say yes in this case as long as it contains the full PD text and the PD text is most of the book. A book that is more notes than underlying text is classified in a separate "YN" (Yes PD, but Notes) category. Altogether, the authors develop seven categories of classification of about sixty-four thousand books according to public domain content. Unsurprisingly, when a book is promoted from copyright to public domain, publishers bring to market competing editions in all price categories, from low-priced budget editions to high-priced luxury editions. This wide range of prices, as well as the value that might be added to some of the new editions by additional matter such as notes, complicates average-price computations. Limiting the comparison of prices to the low-price and middle-price editions (i.e. excluding the highest-priced editions, a technique called "right truncation") shows that publishers are offering public domain works to the public at average selling prices that are four to six percent lower than the prices at which they are offering copyrighted works. This is consistent with the results of Professor Heald's earlier, smaller study of best-selling American fiction.

The authors' survey of sound recordings draws fewer distinctions than the survey of books. A recording is considered "public domain" if the copyright in the sound recording has expired, regardless of the copyright status of the music that has been recorded. While a more sophisticated survey would also examine the importance of public domain music to the price and availability of musical works on copyrighted recordings, the authors' focus on the recording copyright alone is reasonable in light of the ongoing debate in Europe over extending the term of the phonogram copyright. Pollock et al. found that pop-music recordings were on the average roughly seven percent cheaper one year after expiration of their phonogram copyright than they had been one year before expiration.

Besides the analysis of the data, the authors transmit some anecdotal information gathered in the course of the study. According to them

one organization, involved in providing recordings for soundtracks to films and televesion, indicated that out-of-copyright recordings would be 70% cheaper than in copyright ones (£20 thousand to £6 thousand fee).

At the foot of the page (at the time of this writing) is the following, rather chilling, footnote number 11:

The organization explicitly requested to remain anonymous due to fears that an attributed statement could jeopardize his relationship with the large music labels.

This very anonymity makes it difficult to evaluate the ancecdote. What were the "recordings" the organization "provided"? What is the "copyright" referred to in the anecdote: a copyright in the music or a copyright in a recording? And so we know less than we might, apparently because the major labels have given one worker in the music business the impression that they are afraid of the truth, and will retaliate against those who speak it.

I like her already

Why Hollywood Should be very Nervous about Elena Kagan.
--Because she believes in fair use.

Update 4/22/2011: The link has moved to : http://www.hollywoodreporter.com/blogs/thr-esq/hollywood-nervous-elena-kagan-63877

Mr. Justice Stevens

Mr. Justice Stevens, in his long service on the Supreme Court, has written many opinions and dissents. But it is his dissent in Eldred v. Ashcroft that is my favorite. Stevens' starting point was that Congress's power to grant "exclusive rights" for "limited times" to "authors and inventors" for "their" writings and discoveries arises from the a single clause in the constitution, so that many of the principles that the court has developed in its patent-law jurisprudence to protect the public from excessive monopoly must apply to copyright law as well.

The court majority in that case had nothing but scorn and contempt for Stevens' dissent, expressed in Footnote 18 of the Court's opinion:

Justice Stevens' characterization of reward to the author as "a secondary consideration" of copyright law...understates the relationship between such rewards and the "Progresss of Science". As we have explained, [t]he economic philosophy behind the [Copyright [C]lause...is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventers." Mazer v. Stein, 347 U.S. 201, 219 (1954). Accordingly, "copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge...The profit motive is the engine that ensures the progress of science." American Geophysical Union v. Texaco Inc. 802 F. Supp. 1, 27 (SDNY 1992), aff'd, 60 F. 3d 913 (CA2 1994). Rewarding authors for their creative labor and "promot[ing]...Progress" are thus complementary; as James Madison observed, in copyright "[t]he public good fully coincides...with the claims of individuals." The Federalist No. 43...Justice Breyer's assertion that "copyright statutes must serve public, not private ends"...similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with incentive to pursue private ones.

But as I wrote at the time, it was the majority, not the dissenters, who "understated" important aspects of copyright theory, and "missed the mark" in its analysis:

In Madison's day it might have been possible to assert that the public good "fully coincid[ed] with the claims of individuals", because the scope of copyright did not then include derivative works; did not then include public displays and performances; and only lasted for 28 years at most. Everything else Madison wrote about copyrights and patents shows that he is fully aware that copyright places burdens on the public, and that these burdens can, if they become heavy enough, destroy the coincidence between "the public good" and "the claims of individuals." Justice Stevens's and Justice Breyer's statements are entirely consistent with the cases they site. It is the court majority that "misses the mark", disregarding the clear spirit of the court's earlier copyright dicta and cynically citing Madison in a tendentious way. Justice Stevens does not "understate the relationship between [the] rewards [conferred in the copyright monopoly] and the 'Progress of Science'". It is the court majority that understates --indeed, all but ignores -- the relationship between the public domain and the "Progress of Science."

For completeness' sake, here is a link to Mr. Justice Breyer's dissent in the same case.

The new health-care law

The infant mortality rate in some of the rural counties of Oklahoma is shockingly high. If there is anything in the new law that, properly implemented, will bring these rates down, then that provision of the new law is to be welcomed.

Public Knowledge's 5-point plan for copyright reform

Public Knowledge has released a five-point plan for copyright reform that they intend to be the basis of a legislative proposal. The pillars of this plan are:

1) strengthen fair use, including reforming outrageously high statutory damages, which deter innovation and creativity;

2) reform the DMCA to permit circumvention of digital locks for lawful purposes;

3) update the limitations and exceptions to copyright protection to better conform with how digital technologies work;

4) provide recourse for people and companies who are recklessly accused of copyright infringement and who are recklessly sent improper DMCA take-down notices; and

5) streamline arcane music licensing laws to encourage new and better business models for selling music.

Before anything, though, else we need a shorter copyright term. I would consider duration to be implicit in point 3, limitations on copyright. But it is not clear that the folks at Public Knowledge think so. In this article, for example, under "What are the limits of copyright?", they mention only limitations on copyright's scope-- fair use and first sale. Duration is mentioned under the heading "why do we have copyright?" So it seems that the folks at public knowledge don't consider a shorter term of copyright to be part of their 5-point plan, even implicitly. What a disappointment.