Posts Tagged ‘blog: true stuff from old books’.

True Stuff: Thoughts on intellectual property, Part 1

Ever since the SOPA/PIPA blackout last month — which I am pleased to report performed precisely as designed; score one for democracy! — I’ve been consumed with curiosity about the precedent for both this type of lawmaking and this type of protest.

It’s a bit of a cliché at this point to point out that the Walt Disney Company essentially owns American copyright law; whenever Mickey Mouse (created in 1928) threatens to move, over time, into the public domain, Disney has lobbied Congress to extend the legal span of copyright. So within progressive circles, copyright has been often been regarded as a weapon that corporations wield against culture. For example, although SOPA and PIPA are dead for now, a proposed international copyright treaty — ACTA, the Anti-Counterfeiting Trade Agreement — has already been signed by the United States and is currently making the rounds in Europe. Negotiated completely in secret in closed sessions between lawmakers and media corporations, it is considered by some to be even more dangerous to a free and open Internet than SOPA/PIPA.

So in researching historical precedents, I was intrigued to read the following, in an 1877 collection of essays by Nathaniel Southgate Shaler:

In the last days of this late distracted session of Congress a stealthy effort was made to push through the legislative ways a bill that would have practically abolished the limited monopoly of inventions granted by our present patent laws. This measure passed unquestioned through the House, and was only arrested in the Senate by the vigorous resistance of a few men from without its walls. As this scheme has the backing of several strong corporations…it is sure to be revived in the next session of the national legislature.

The dangerous, secretive bill of his time was one that apparently would have abolished restrictions on intellectual property!

I’m not certain what bill in particular Mr. Shaler is referencing here, since the latter half of the nineteenth century was absolutely littered with patent, trademark, and copyright legislation. Patent law was created to preserve the rights of an inventor to the profits derived from his invention, without fear of the invention being duplicated by a rival; trademark law, the same for brand names (essentially to prevent counterfeit goods from being sold under a reputable name); and copyright law, the same for works of creative expression such as books, plays, and music. The three forms of intellectual property are nowadays often bundled together as far as legal rights are concerned, but it wasn’t always so.

The patent law in effect as of 1870 provided patent protection to an inventor for seventeen years from the date of filing. Earlier, the grant of patent was for only fourteen years, but the holder of a pre-1861 patent could personally petition Congress for an additional seven-year extension, in what was surely the least efficient process imaginable. Occasionally there came to Congress a petition for a further extension based on extenuating circumstances — here’s a Congressional transcript from 1873 in which Lyman Trumbull, in his last year of office after 28 years in the Senate, wearily objects to this practice: “Every man who has a patent will come here with his claim to have it extended. He will bring his affidavits that he has not made as much as he thinks he ought to have made by his discovery; somebody has litigated with him perhaps, or there has been some objection… It is time it was stopped.” (Patents nowadays generally last for 20 years.)

Despite Mr. Shaler’s claims, patents and intellectual property in general were treated very seriously by lawmakers at the time. In the 1870s there was a furious debate about whether Congress had the constitutional power to administer trademarks at the federal level (since only patents and copyright are mentioned in the Constitution), and when the Supreme Court decided in 1879 that it was in fact not constitutional, a constitutional amendment to give Congress that power was immediately proposed by junior Iowa Senator Moses A. McCoid.

In debate, Georgia’s Nathaniel Hammond declared the amendment frivolous by asserting that the stability of the Constitution, and its assignation of such rights to the individual states, was “like the sun, grand, majestic, glorious — but out of its orbit, whether by force, legislative or judicial, centripetal or centrifugal, it makes of our system chaos and blazes but to burn.” [Citation

McCoid responded, in part (emphasis mine):

The lion’s skin may become too short. We are stretching our limbs; we are expanding our lungs; we are extending our territory, increasing the number of our States, extending new lines of railway, stretching telegraph wires across plains and mountains; we are swarming above and talking beneath the seas; we are overcoming new difficulties and contriving new forces and instruments of enterprise, and the giant form which is thus growing to manhood can not lie within the narrow confines of the cradle of its infancy. [...]

The Constitution, Mr. Speaker, is not a mummy of unchangeableness laid away in the pyramid of our reverence for our fathers, but the plastic charter for a living, growing, ever-changing people… [Citation]

Spoiler alert: the Constitutional amendment never went anywhere. Congress did pass a federal trademark law in 1881 based on a creative interpretation of its power to regulate interstate commerce, but modern trademark law as we understand it today wasn’t codified until the Lanham Act of 1946.

But until the 1881 act, there was an interim during which there was no system of federal trademark regulation. The law as laid out in 1870 was declared unconstitutional and repealed in 1879 — which meant that the government had to return $210,000 in trademark fees collected during those nine years. They had to pay back $25 per filing to 8,400 people. And until the issue could be settled further, trademark law remained an issue regulated by individual states — meaning that you could potentially file a trademark in California that wasn’t valid in Oregon.

Two more minor points of interest in this debate. One of Senator Hammond’s reasons for opposing the constitutional amendment was that he did not believe trademarks were as worthy of protection as copyrights and patents:

Suffer me to call attention to this effort to give a dignity and importance to trade-marks to which they are not entitled… The author spends a lifetime of seclusion and study that he may write a book. He is frequently not rich, but poor; not honored, but despised. A copyright but protects from piracy that which, while it may support him, blesses his race. The scientist or inventor constructs in his brain what no other mind can produce. To perfect his projects costs time and toil. To-day he is buoyant with hope, to-morrow in despair. Capital opposes his innovations; ignorance fights him. He may be driven from home, as was Fourdrinier from France, for inventing the paper-making machine, or Jacquard from Lyons, for improving weaving machinery. It is right that genius should be protected and rewarded. And yet so opposed were our fathers to monopoly that to these benefactors of mankind they gave constitutional protection only for “a limited time,” in consideration of public use of their inventions, etc., in all future time.

But what thought or study, what toil or risk, what care or expense to the capitalist was involved in such trade-marks as “the shirt,” “exactly twelve yards,” “Bismarck” (collars), “genuine Yankee soap,” or “Mrs. Winslow’s soothing syrup”? Why should they be protected and forever? [Citation]

To which McCoid responded, with an amusing bit of theatrics:

The gentleman from Georgia seems to think the subject a trivial one, and not of sufficient importance to justify this action; and in his attempt to belittle it he talks of the protection of “Winslow’s Soothing Syrup” and such things as that. I wish to remind the gentleman, in order to relieve his mind from that attempt to belittle the subject, that he justifies and eulogizes our fathers for placing the copyright clause in our Constitution; but he might, with a like spirit of unfairness, as well have ridiculed them by referring to these copyrighted works I have before me [holding them up] — the “Dashington Brothers’ Negro Song-Book,” the “Pitcher-of-Beer Songster,” the “Sullivan and Harrington Sweet Jerusha Jane Songster,” “Lottie Grant’s Tired of Single Life Songster,” “Mother Goose,” “Weston Brothers’ Laughing Chorus,” and “Jenny Jones’s Songster.”

A Member: Do not forget “Jack, the Giant-Killer.”

Mr. McCoid: I will include “Jack, the Giant-Killer,” as the gentleman suggests, and I might mention many others. [Citation]

>>> IMPORTANT ASIDE: If you are at Brown University, you need to go to the library and examine what may be the only existing copy of “Lottie Grant’s Tired of Single Life Songster” and report back.

Hammond also opposed a bill that detailed harsh penalties for counterfeiters and violators of trademark:

Those sections punish every person who deals in or sells or keeps or offers for sale or procures the sale of goods covered by a colorable imitation of a trade-mark, or puts a trade-mark on goods made to imitate trade-mark goods, or fills a bottle or box covered by a trade-mark with an imitation of its intended contents, etc… The punishment is a fine not exceeding $1,000 or imprisonment not more than two years, or both such fine and imprisonment. [...] Have the gentlemen thought of the severity of this punishment? [...]

Four men, convicted of illicit distillation, left the bar of a United States court for the penitentiary in Albany simultaneously. One was rescued by a pardon; death relieved the keeper of the custody of the other three…

I am told the laws would not be enforced, but are needed to prevent the crimes. The advocates of the bill would invoke the majesty of the United States to frighten citizens. No such spirit breathes from the Constitution. If you would not have laws despised, pass none which you will not enforce. Make laws to provoke love, not to excite terror. [Citation]

This strikes me as similar to contemporary debates about the penalties for intellectual property “piracy.” According to the official RIAA website:

Making unauthorized copies of copyrighted music recordings is against the law and may subject you to civil and criminal liability. A civil law suit could hold you responsible for thousands of dollars in damages. Criminal charges may leave you with a felony record, accompanied by up to five years of jail time and fines up to $250,000.

Meaning, as has been pointed out by many people, you could go to jail for five years for pirating a Michael Jackson song, or one year longer than the doctor who killed him.

Tomorrow: The debate over foreign copyright as it pertains to literature! It’s more interesting than it sounds, I promise. At least…to me

True Stuff: ‘Conjugal Duels’

The 1894 book Revolted Woman: Past, Present, and to Come by Charles George Harper is hideously, horrendously sexist. It starts off right away, fearfully mocking the very notion of equality:

She is upon us, the Emancipated Woman. Privileges once the exclusive rights of Man are now accorded her without question, and, clad in Rational Dress, she is preparing to leap the few remaining barriers of convention. Her last advances have been swift and undisguised, and she feels her position at length strong enough to warrant the proclamation that she does not merely claim equal rights with man, but intends to rule him.

Such symbols of independence as latch-keys and loose language are already hers; she may smoke — and does; and if she does not presently begin to wear trousers upon the streets — what some decently ambiguous writer calls bifurcated continuations! — we shall assume that the only reason for the abstention will be that womankind are, generally speaking, knock-kneed, and are unwilling to discover the fact to a censorious world which has a singular prejudice in favour of symmetrical legs.

Right out the gate. Page 1. Wow!

I will spare you hundreds and hundreds of pages of misogyny (spoiler alert: woman “has ever been the immoral sex”; “has ever been the active cause of sin”; &c. &c.) but will point out this bit, in service of my active hypothesis that everything is always the same, ever:

Directly a woman marries, she considers that she has full licence; although, goodness knows! the unmarried girls of to-day are latitudinarian enough, and do, unreproved, things that thirty years ago would have branded them with an ineffaceable mark of shame.

“Back in my day, things were fine. But these kids today…!” Every generation, from 1894 — heck, from 1894 B.C. — till today has always felt that the kids now are worse than ever before, a disgrace to society, and overall a shameful, worthless generation.

That said, while Mr. Harper’s good-old-days curmudgeonliness may not be uncommon today, I am quite happy that the particulars of his objections are by modern standards laughable. What do the women of to-day do to earn the scornful label “latitudinarian”? Why:

• “She aspires to be the boon companion of the men; she plays billiards with the manly cue, and not infrequently she can give the average male billiard-player points, and then beat him.”

• “She has not annexed the cigar and the pipe yet — not because she lacks the will, but her physique is not yet equal to them; but she can roll a cigarette, can take or offer a light with the most practised and inveterate smoker who ever bought a packet of Bird’s Eye or Honey Dew, and she wears — think of it, O Mrs. Grundy, if, indeed, you are not dead! — a smoking-jacket.”

• “Slang and swearing are the commonest — in two senses — accompaniments and underlinings of the smart woman’s speech: any little disappointment that would have been ‘annoying’ to her mother is to the modern and up-to-date woman a ‘condemned nuisance,’ if not more than that; and ‘damns’ fall as readily from her lips as the mild ‘dear me!’ of a generation ago.”

• “Woman does not date her correspondence. She has no ‘views’ on the subject; she simply forgets. Sometimes, indeed, she will head her letters with the day of the week; but, as the weeks slip by, a letter written on any ‘Wednesday’ becomes rather vague in date. Also, it is notorious that the gist of a woman’s letter, the real reason of its being written, appears in a postscript.”

• “At present she carries her purse in her hand along the most crowded streets, at the imminent risk of its being snatched away. Ask her why she does this, and she will tell you that she has no pockets, or that they are difficult to reach, or else that they are too easily reached by pickpockets. It never occurs to her that the devising of new pockets comes within the range of the dressmaker’s craft. Not that it matters much; for the purse-snatcher obtains little result for his pains, and, beyond some postage — stamps, half a dozen visiting-cards, a packet of needles, and a few coppers, his enterprise usually goes unrewarded.”

Finally and most distressingly:

• “Women…may exercise their brains and their muscles to their utmost tension; but let them not in those cases exercise the natural function of woman and bring children into the world. For nature, which never contemplated the production of a learned or a muscular woman, will be revenged upon her offspring, and the New Woman, if a mother at all, will be the mother of a New Man, as different, indeed, from the present race as possible…But it is not to be supposed that even the prospect of peopling the world with stunted and hydrocephalic children will deter the modern woman from her path, even though her modernity lead to the degradation and ultimate extinction of the race.”

Let me repeat that argument: If women get too bent off their ‘natural’ ways, they’re going to have deformed children and the human race will perish. All this and I’m only up to page 27 of this book.

I’m actually quite glad that this reads as hilarious — because it means that society has come a long way from this sort of argument being commonplace. At least, that is, with respect to sexism. Pointing out the “obvious”, appealing to “nature”, and endless “but think of the good of society!” pseudo-logical rationalizations have been, and sadly continue to be, the same whether the argument addresses sex, race, religion or sexual orientation. And they all seem to stem from a fear of losing power.

I have found countless articles and books of this era that address the relationship between the sexes in terms just as derisive as this, and some of the more boisterous ones such as Revolted Woman can be funny in their cocksure, utterly misled conviction, but when the same arguments are mapped onto present-day struggles, the text becomes somewhat less fun to read, less easy to laugh at. So I will skip ahead a hundred pages or so to the descriptions of

Conjugal Duels

In a chapter headed “Domestic Strife,” in which he (surprise!) exhorts men to rule absolutely over their wives, Harper gives examples of marital struggles through the ages. A medieval French poem tells of a couple fighting bloody tooth and nail over a pair of breeches; an English woman locks her husband in a window-shade as if it were a pillory. And then this, from a 15th-century German manuscript:

In Germany, during mediaeval times, domestic differences were settled by judicial duels between man and wife, and a regular code for their proper conduct was observed. ‘The woman must be so prepared,’ so the instructions run, ‘that a sleeve of her chemise extend a small ell beyond her hand like a little sack: there indeed is put a stone weighing iii pounds; and she has nothing else but her chemise, and that is bound together between the legs with a lace. Then the man makes himself ready in the pit over against his wife. He is buried therein up to the girdle, and one hand is bound at the elbow to the side.’

Another reference to this strange practice is found in A History of Caricature and Grotesque (1875), adding more details to the scene:

At this time the practice of such combats in Germany seems to have been long known, for it is stated that in the year 1200 a man and his wife fought under the sanction of the civic authorities at Bale, in Switzerland. In a picture of a combat between man and wife, from a manuscript resembling that of Paulus Kall, but executed nearly a century later, the man is placed in a tub instead of a pit, with his left arm tied to his side as before, and his right holding a short heavy staff; while the woman is dressed, and not stripped to the chemise, as in the former case. The man appears to be holding the stick in such a manner that the sling in which the stone was contained would twist round it, and the woman would thus be at the mercy of her opponent.

In an ancient manuscript on the science of defence in the library at Gotha, the man in the tub is represented as the conqueror of his wife, having thus dragged her head-foremost into the tub, where she appears with her legs kicking up in the air.

This was the orthodox mode of combat between man and wife, but it was sometimes practised under more sanguinary forms. In one picture given from these old books on the science of defence by the writer of the paper on the subject in the Archæologia, the two combatants, naked down to the waist, are represented fighting with sharp knives, and inflicting upon each other’s bodies frightful gashes.

(The journal Archæologia [Volume 29, from 1842] does indeed contain what appears to be the original description of the A.D. 1400 manuscript that the other accounts quote and cite.)

So what have we learned? Women’s emancipation has come a long way: marital conflicts are regrettably no longer resolved by the wife donning a chemise with a sling full of rocks attached and the husband waving a stick around while standing in a pit. Oh, those ‘good old days’!

UPDATE: From the comments: “If you want more info on the rather bizarre judicial duel between man and woman, it’s depicted in detail in Hans Talhoffer’s Fechtbuch from 1467 (plates 242-250). The plates / English translation

AMAZING

True Stuff: Radium

Thanks so much to those who came out to the Ann Arbor talk on Wednesday! Especial thanks to Eli, Matt, and Shirley of the Ann Arbor District Library for making the trip totally smooth; Kelly and Mike for kind hospitality; Nealie and Flex for incredible graciousness (they took me to the Henry Ford Museum! I took pictures of steam gauges!!) and everyone I’ve met in Michigan this week. I have many thanks to extend for the Dearborn trip as well (Morgan, Becca, Arica, Vicky, Hannah, et al) but let’s leave it at, if you think you ought to be thanked, you are.

I am in Charlotte now for Heroes Con! It’s all this weekend at the Charlotte Convention Center! How about that!

ANYWAY. I came across this article tonight in a 1904 issue of a magazine called Technical World. It’s a really interesting piece about the discovery and properties of X-rays and radioactivity, but these few paragraphs in particular caught my eye:

…[Radioactive] complex molecules are continually disintegrating into simpler ones, and in so doing are setting free the energy that was originally put into them when the processes of life first built them up into their complex forms…

[This energy is] enormously greater than the energies involved in any of the ordinary chemical transformations. The disintegration of a gram of uranium…sets free at least a million times as much energy as that represented in any known chemical change taking place with a gram weight of any compound substance.

The experiments of the last eight years have marked a most notable advance in science, in that they have proven the existence of this immense store of sub-atomic energy. It seems highly improbable, however, that this energy can ever be utilized on the earth to serve man’s economic needs.

…Radium may possibly prove to be of some practical value in the cure of disease, although it is too early yet to assert even this with assurance.

Nailed it.

BONUS: Another mention of radium in Popular Science, 1921:

I guess that’s one way to get a “natural, healthy glow.”

True Stuff: Idealized vs. Realistic Portraiture

In my last post on the ethics of photo retouching, and how it’s been prevalent since the birth of photography, commenter Pelotard mentioned the official Soviet portraits of Gorbachev:

…And how they always conveniently seemed to leave something out.

This got me thinking about idealized portraiture in general. It goes back as long as portraiture itself, of course; early classical portraits of emperors and such tended to cycle through emphasis on either a rugged, realistic appearance (as would befit a warrior and statesman) or an angelic, unblemished appearance (as would befit a god). In the same way, later emperors (such as Constantine) saw value in associating themselves in the public eye with prior, well-regarded emperors. Constantine went so far as to wear the same haircut as Trajan:

(In my interview with the world’s foremost beard expert, Dr. Christopher Oldstone-Moore discusses a similar trend in the history of beards. Alexander the Great wished to be seen as a god, i.e. youthful and athletic, so he wore no beard. Hadrian, however, wished to be seen as a philosopher and thinker, so he did wear a beard. It was a cyclical fashion.)

There are cycles in contemporary fashion too, of course: the recent few years have seen a huge rise in oversharpened, deliberately un-airbrushed celebrity portraits like those of Martin Schoeller. But as you might imagine, I’m personally particularly interested in how people felt on the subject 100+ years ago.

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True Stuff: The Ethics of Retouching

Modern-day photo retouching (as in here and here) is a big business in the world of magazines and advertisements and mass media, and every now and then there’s an outcry about how fake it all is. It distorts perceptions of beauty and reality, and elevates celebrity onto weird unblemished pedestals.

Before lumping this into “a problem with our modern world” too fast, though, remember that it was always thus: kings and queens were flattered by their bust-sculptors and portrait-painters, and as soon as photography was invented, there were retouchers. Drawing onto negatives with a pencil to prompt prints to come out lighter, or delicately scratching away emulsion to prompt prints to darken, they removed stray hairs, straightened noses, and erased double chins from the very first.

Here’s a bit from “A Magazine of Photographic Information,” March 1900 edition:

Retouching has been much condemned, alike by those who cannot practise it, and by those of artistic trend; we must admit that in many hands its use is pushed far beyond its legitimate scope, and with deplorable results. If, however, we judge a process by its abuse, then all photography must be placed under the ban, for certain it is, that many things photographic are produced which are without any merit whatsoever beyond the negative one of probable impermanence.

The article continues on to be quite prescient:

The Coming Retouching

What retouching should be, it is impossible to say. The retouching of the future is a matter of gradual evolution, rather than of demonstration. Probably the amateur will suggest it in part, but it should come more from the steady worker who day by day steadily pencils over his pile of negatives. It may safely be said that, far from being superseded, retouching, in a modified form, will be more universal in the future than in the past. Possibly it will often be nearer “faking” than retouching, but there will be few pictures, save those of beginners, which will be “straight prints from straight negatives.”

Here’s a bit from the 1898 book Amateur Portraiture at Home, which realizes it has to dip into the subject of retouching, but sure isn’t happy about it:
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