New Director General for WIPO

Yesterday saw high drama in Geneva not seen since -- well, I don't know when there has been high drama in Geneva -- but anyway, by a vote of 42 to 41, Francis Gurry of Australia was elected the new Director General of WIPO. As reported by the Intellectual Property Watch blog:

The busy campaigns of the 15 original candidates lasted for months, beginning last autumn, and in some cases as far back as last summer, when it became apparent that a concerted effort would be made to convince the current director general to leave early out of concern for confidence in his leadership. Director General Kamil Idris agreed to leave the position one year early, on 1 October 2008.

But in the end, Gurry, considered a favourite as one of the most senior officials in the organisation who had nevertheless crafted a reputation for relative independence from the existing administration, prevailed. Gurry is the deputy director general in charge of patents, Internet domain names, and other matters, and previously served as WIPO general counsel. ....

In the end, it was a duel of insiders, as Graça Aranha also has been with the organisation for years. But Gurry may have managed to swing just enough developing country votes to take it. He also seemed to have support among some staff in the organisation. After the result, one staff person took to the hallways, shouting, “Viva Gurry!”

I have been told by an Australian colleague that the reaction in Australia was the more boisterous Australian war cry, "Aussie Aussie Aussie!!! Oi Oi Oi!" In any event, mazel tov to Mr. Gurry, and may the force be with you.

A Sociology of Ownership

Robert King Merton died on February 23, 2003 at the age of 93. A man of great erudition and wit, he was born in Philadelphia on July 4, 1910 as Meyer R. Schkolnick to working class Jewish immigrants. His son Robert C. Merton won the Nobel prize for Economics in 1997. Meyer was a sociologist, and in 1957 became the President of the American Sociological Association; upon that occasion gave an address entitled "Priorities in Scientific Discovery: A Chapter in the Sociology of Science, available here. (In 1980, the great mathematical statistician Stephen Stigler, himself the son of a Nobel laureate, wrote a highly amusing Festschrift contribution for Merton called "Stigler's Law of Eponymy," published more recently in a revised form in his 1999 book "Statistics on the Table." Sigler's Law of Eponymy is "No scientific discovery is named after the original discoverer," a self-referential pun completed by his attribution of the law to Merton. See wikipedia entry here on "Stigler's Law" and here for a list of eponymous laws).

Before reading Robert K's 1957 address this morning, I was familiar with his 1965 book (in the 1991 edition) "On the Shoulders of Giants." This book attempts to trace the aphorism, frequently and wrongly attributed to Issac Newton, that "If I have seen further it is by standing on the shoulders of Giants." I find Merton's book deeply annoying for its self-conscious effort to write in the style of Tristam Shandy, but I nevertheless did a blog on the issue in February 2006. What I didn't realize at the time of the blog, but now realize from reading the 1957 address, is how the book fits into Robert K's views on the sociology of ownership claims. In that address he argues that the many disputes over which scientist is the originator of a particular theory arises from the sociology of (at least modern) science, in which: "Recognition for originality becomes socially validated testimony that one has successfully lived up to the most exacting requirements of one's role as a scientist." (page 640). He argues that the disputes over who originated a scientific principle arises "from the institution of science, which defines originality as a supreme value and thereby makes recognition of one's originality a major concern."

This concern in turn is reflected in a reward system, one that includes eponymous laws, and more recently prizes. (See pages 642-645). But offset against this institutional push to show you are a giant and not a dwarf is a countervailing institutional norm, that of humility. As Merton puts it: "If the institution of science placed great value only on originality, scientists would perhaps attach even more importance to priority than they do. ...[But] the socially enforced value of humility [serves] to reduce the misbehavior of scientists below the rate that would occur if importance were assigned only to originality and the establishing of priority." (page 646). One form of humility is acknowledgment of one's "heavy debt" to one's predecessors, and it is here that the dwarf-giant aphorism comes into play, for Newton used it in a letter to Richard Hook, with whom he was then engaged in a priority dispute over the theory of colors. The usage of the metaphor was, therefore, false humility. Not everyone felt the need for such false humility. Merton gives the example of the late Harvard mathematician George Birkhoff, who upon receiving a letter from a Mexican mathematician expressing the hope that the U.S. would send to Mexico "savants of your stature," replied: "Professor Erro, in the States I am the only one of my stature." This led to obituary address for Birkhoff by Norbert Wiener that Birkhoff "was the first among us and he accepted that fact."

In any event, both the Merton and Stigler articles make another point, namely that the effort to determine who had priority, who was "original," is extremely difficult given the way manner in which we all build on each other, whether we are dwarfs or giants.

IceTV Iced: Kangaroos Hopping Mad

In August of last year, I did a post on a decision by Justice Annabelle Bennett of the Federal Court in Sydney, Australia in a copyright infringement suit brought by the Channel Nine Network in Australia against IceTV for the latter's electronic program guide. Ice's EPG copied schedule information from Nine's weekly guides. Earlier background on the suit can be found here in a post by Kim Weatherall, and here in a post by Peter Black. IceTV was found to have copied information from Channel Nine, but to have engaged in its own research as well, combining information from a number of sources. This activity led the judge to conclude: “It is open at law to a person to ascertain the facts recorded in a compilation on the basis of that independent inquiry. This is what IceTV did…” That made sense to me.

On May 8th, Justice Bennett's decision was reversed on appeal. Here is a link to the appellate opinion. Kim Weatherall has a long post on the opinion here, with a follow-up with other excellent links here. As Professor Weatherall points out regarding the appeal: "This truly was an all-stars copyright case: interesting issues, an all-star IP bench (including the CJ himself, plus two senior IP heavies - Justices Lindgren and Sackville) (note too - the same bench that sat on the Desktop Marketing case), no less than 4 senior counsel (all of them IP heavies in their own right) plus juniors." That said, for American lawyers, the opinion, as with the earlier opinion by in Desktop Marketing Systems Pty Ltd. v. Telstra Corporation, Ltd. [2002] FCAFC 112, involving telephone directories, may prove baffling. Not that baffling American lawyers should be any consideration for Australians: I am merely noting that Australian law on the issues of originality and infringement of factual compilations is radically different than U.S. law, at least post-Feist. (I think pre-Feist too, but there were a few sweat of the brow opinions before Feist).

I leave it to Australian copyright experts -- of whom there is a vast number in that magnificent country -- to debate whether the court of appeals got the IceTV issue right as a matter of Australian law and/or policy. I do note these remarks by Professor Weatherall:

In summary? A judgment that is consistent with the trend of Australian authority, and entirely [’entirely’ is a bit strong for a preliminary view!!!] consistent with the reasoning of the (identical) Full Federal Court in Desktop Marketing. But a judgment which also illustrates how far away, in some respects, Australian copyright law is from copyright law in other countries, including the US (with its concepts of thick and thin copyright), and the UK now that the UK has the Database directive. And a judgment that emphasises that Australian copyright law truly does protect information, and not just expression (the judgment is notable for not even talking about that issue).

My question about both Desktop Marketing and now IceTV is a conceptual one: where protection is based on sweat of the brow, how is there any room for the traditional substantial similarity analysis that the court nevertheless ploughs through, including a discussion of qualitative takings? To be clear about the context of the question: plaintiff did not claim copyright in the form of the weekly guides, meaning, I take it, the selection, coordination, or arrangement in U.S. compilation terms. Rather, the claim was in the sweat of the brow. Justice Bennett below had tried to make a fine distinction about types of labor, phrasing the question as "not whether Ice had taken the skill and labour which had been expended in programming decisions, but whether it had taken [Nine's] skill and labour of creating the work." This framing of the question at least tried to separate out two distinct activities, the first the creation of what Americans would call the creation of the broadcast day -- the actual programming that was broadcast --, and the second being whatever effort went into the creation of the weekly guide from which Ice took information. The court of appeals was having none of this: "it would seem that the originality of [the time and title] information lay not so much in the form in which None presented it, but the skill and labour expended in selecting and arranging the programs." (para 94).

To an American, I see two problems with this aside from the avowed protection of sweat of the brow (see paragraph 92 of the appellate opinion): first, it grants protection to the weekly guides based on what was done in constructing the actual programming rather than in constructing the guides, and, second, it absolutely protects facts. Given this, the opinion could have been quite short: did Ice expend its own sweat of the brow? If not, case over, and let's dispense entirely with the traditional infringement analysis. I say this not to be catty (I leave that to the IPKat, meow!), but rather to note than sweat of the brow is based on unfair competition, not copyright, so why not just decide it that way?

Retail Value among Thieves

You have been nabbed by the FBI for selling 300 counterfeit DVDs. You are facing prison time and fines, but how for long and how much money? The answer depends on the retail value of the DVDs, in particular whether they are worth more than $2,500. How do you get to below $2,500 for selling 300 counterfeit DVDs? By explaining to the judge that you sold them for $1,500. But is the relevant retail value the value for legitimate copies or the retail value that those who buy from counterfeiters pay? Who in other words are the willing buyers we look at? The term "retail value" is undefined, but the issue was just decided by the Fourth Circuit in United States v. Armstead, 2008 WL 1947869 (4th Cir. May 6, 2008)(05-5157). The court's approach seems unduly complicated, although it waqs of no moment to defendant since the court upheld the jury's verdict.

Here is the court's explication of defendant Armstead's argument:

He asserts that retail value, as used in the statute, means "the price a willing buyer would pay a willing seller at the time and in the market in which it is sold-the thieves' market." With this definition of "retail value," he argues that what a willing buyer would pay a willing seller at the time was evidenced by what the undercover agent paid him and therefore that the retail value amount was insufficient to satisfy the felony threshold amount of $2,500.

Here is the court's explication of the government's position:

The government contends that "retail value" refers to the higher value of what a willing buyer would pay a willing seller for a legitimate copy of the infringed item, such as an authentic, authorized DVD of the same movie. The government states that retail value as used in the statute is not the " 'bootleg value' the defendant received on the black market." It argues, "[i]f the Congress had meant to use the 'bootleg value' or 'wholesale value' of counterfeit product[s], it certainly would have used that or similar language; instead, the Congress used the phrase 'total retail value' of the copyright works."

The government's view makes sense and is easy to apply. Alas, that is not the approach taken by the court of appeals:

The government provides no authority to support the position that prices paid in a "thieves' market" cannot be a market value. Indeed, its only definition - the price of a movie "if it were sold to a member of the public" - would seem to include any market, except for the fact that the government argues for a value determined only by a market of "legitimate" copies. The government's assertion that the market for illicit goods is not determinative of "retail value" may be correct, but only if there is other evidence of a higher "value." ... Otherwise, a black market for illegitimate goods undoubtedly may provide evidence of a "market value." .... It remains undisputed by the parties that whatever value is used, it must be a value applicable at the time the violations occurred and the transactions in question took place-in this case, June 2003 and January 2004. Accordingly, retail value, as used in § 2319(b)(1), refers to prices assigned to commodities and goods for sale at the retail level at the time of sales at issue, representing face value or par value, or prices of commodities and goods determined by actual transactions between willing buyers and willing sellers at the retail level- whichever is the greatest. In this case, Armstead sold the illicit DVDs to an undercover agent when the movies recorded on them had only been distributed for theatrical release (and perhaps for hotel and airline release) but certainly before they had been released on DVDs to the public. Thus, at the time of the illicit transactions, there was no legitimate retail market for the sale of DVDs except as evidenced by the occasional and sporadic illicit transactions of the kind represented in this case. As noted, prices paid in those illicit transactions might be evidence of a market value. But in this case, the "thieves' market" prices were not the only evidence. The government presented evidence of other kinds of value that related to retail value during the theatrical release stage of the movies when the illegal transactions occurred.

...

Based on our reading of the statute, the government's evidence of the prerelease values of copies of movies, the actual selling prices of legitimate copies of movies in the postrelease period, as well as the suggested retail prices (which were erroneously excluded by the trial court), were all appropriate evidence for a jury to consider in determining total retail value of the illicit transactions. Likewise, the evidence relied on by Armstead of the actual transaction prices in the wholesale "thieves' market" was appropriate evidence for a jury to consider.

...
The fact that Armstead actually sold his DVDs in bulk for $5 per copy was also evidence that the jury could have considered. But this evidence would not be evidence of the greatest value; rather, it provided evidence of the lowest value that could be assigned to the DVDs. Indeed, the $5-per-copy price was a wholesale price, suggesting a "retail" value somewhat greater than $5 per copy.

BTW, Armstead was ultimately sentenced to six months' home detention, and paid $1,500 in fines.

Infringement by Copying Public Domain Works

Riddle me this Batman: when can you commit infringement by copying public domain works? When the public domain work is a derivative work and the underlying published work is still under copyright. The issue has its roots in the 1909 Act, in cases construing Section 7 of that Act, which read:

Compilations or abridgements, adaptations, arrangements, dramatizations, translations, or other versions of works in the public domain or of copyrighted works when produced with the consent of the proprietor of the copyright in such works, or works republished with new matter, shall be regarded as new works subject to copyright under the provisions of this title; but the publication of any such new work shall not affect the force or validity of any subsisting copyright upon the matter employed or any part thereof, or be construed to imply an exclusive right to such use of the original works, or to secure or extend copyright in such original works.

This section led to numerous court of appeals opinions and one Supreme Court decision, Stewart v. Abend. The bolded part at the end is particularly inscrutable even by the standards of the 1909 Act. If for example, where there is an authorized derivative work, shouldn't the original material included in the derivative work fall into the public domain when the derivative work falls into the public domain? One way to interpret this section is to say that when an authorized derivative work falls into the public domain, anyone can use that work and anything from the original included in the derivative work. In the case of unpublished screenplays, that is what the Ninth Circuit held in Batjac Productions, Inc. v. Good Times Home Video Corp., 160 F.3d 1223 (9th Cir. 1998).

But earlier, in Russell v. Price, 612 F.2d 1123, 1128 (9th Cir.1979), the court came out differently where published works were involved. Russell involved a film version of Pygmalion, a play by George Bernard Shaw. In 1935, Shaw licensed rights to produce a film (also called Pygmalion) based on his published, copyrighted play. Copyright in the film expired through a failure to timely renew. Copyright in the play, Pygmalion, continued until 1988. Defendant began distributing the now public domain film in 1972. The owners of the play (Shaw had died) brought an infringement claim based on infringement of the play. The Ninth Circuit held that because parts of the film used the still-under-copyright play, infringement occurred. As stated by the court:

Thus we reaffirm ... the well-established doctrine that a derivative copyright protects only the new material contained in the derivative work, not the matter derived from the underlying work. Thus, although the derivative work may enter the public domain, the matter contained therein which derives from a work still covered by statutory copyright is not dedicated to the public. The established doctrine prevents unauthorized copying or other infringing use of the underlying work or any part of that work contained in the derivative product so long as the underlying work itself remains copyrighted. Therefore, since exhibition of the film “Pygmalion” necessarily involved exhibition of parts of Shaw's play, which is still copyrighted, plaintiffs here may prevent defendants from renting the film for exhibition without their authorization.

The issue arose again last August in a different setting, the Andy Griffith television show. The show aired on CBS from 1960 to 1968 and starred Griffith as Andy Taylor, Sheriff of Mayberry, North Carolina with Ron Howard as his son, Opie, Frances Bavier as his aunt, Beatrice "Aunt Bee" Taylor, and Don Knotts as his deputy, cousin, and best friend Barney Fife.
In March 1997, Paramount Pictures Corporation, a predecessor-in-interest to CBS, submitted renewal applications for episodes 80 through 95 (the “16 Middle Episodes”), as well as sixty other episodes. On June 5, 1997, the Copyright Office rejected the renewal applications for the 16 Middle Episodes as untimely, and into the public domain they went. A company called Rel Funds International, Inc. distributed the Middle Episodes, and CBS sued for infringement of the earlier episodes based on the Russell theory. The court held for CBS, 2007 WL 2325218 (N.D. Tex. Aug. 13, 2007). What I fine ironic about this result -- aside from the Middle Episodes not really being in the public domain anymore -- is that in the context of statutory damages, plaintiffs have successfully argued around the Section 504(c) limitation on only one award per derivative work or compilation (i.e., here the series), and obtained multiple awards of damages based on each episode. Apparently, when it comes to the precedent question whether each episode is under copyright, we magically are not to focus on the episode but on the series.

Forseeability and Copyright Incentives

Professor Shyamkrishna Balganesh of the University of Chicago Law School has an article called "Forseeability and Copyright Incentives, coming out in volume 122 of the Harvard Law Review but available here in draft form at ssrn. The topic is an intriguing one -- if copyright is instrumental, meaning incentive based -- how is that so little of how copyright actually works does not bear the slightest resemblance to incentives? This was the topic of then Professor Stephen Breyer's 1970 "Uneasy Case for Copyright " article (also in the Harvard Law Review). Professor Balganesh's work might provide a new look at the issues 38 years later, but in order for that effort to succeed, there are some basic errors that need to be corrected, as well as some rethinking.

His basic point is one I agree with and which I think deserves serious inquiry. The point is this: if copyright is instrumental -- and it is hard to look at the relevant Supreme Court opinions, the language and history of the Constitutional clause and think otherwise regardless of one's own views -- then it is incumbent to determine whether that instrumental goal is being fulfilled, not just as a systemic issue, but at the micro level. At the micro level, it is hard to look at the current level of protection and think there is any correlation at all between that protection and incentives to create. (It is a very different question whether the failure to match incentives to protection rises to the level of a constitutional infirmity, as Eldred illustrates).

To his credit, Professor Balganesh takes on a number micro issues, such a new uses, substantial similarity, and fair use. He proposes employing, as a common law tool, the foreseeability theory/behavior economics theory approach to deciding these issues. Both take as a starting point the idea of "bounded rationality": we each only know so much. This is in contradistinction to the neoclassical economic assumption that we are perfectly rational and readily respond to utility-enhancing incentives. Put crudely in Chicago terms, are you with Richard Posner or Cass Sunstein?

And again to Professor Balganesh's credit, he takes the bold step of offering some hypos and seeing how they would pan out with his theory. Here are some of my issues with how he approaches the hypos and works them out. First, the new use issue -- in 1955 did an author who authorized use of the work on black and white television think of VCRs in authorizing his or her work to be "exhibited" on television. This is a common issue, but it is not a copyright issue at all; instead, it is a contract issue, and a state contract issue at that. The Second Circuit has made this clear many times. Second, on fair use, it is not true as Professor Balganesh states that "the doctrine of fair use is of statutory origin." (page 11). It is a common law doctrine. Nor do I agree with his remark that "It remains common consensus among copyright scholars that the fair use doctrine -- as it is structured and applied today-- remains deeply flawed." (page 5, note 16). I don't know about copyright scholars, but Judge Leval who knows a thing or two about the question, takes a very different view. In recent speeches, he thinks fair use is working well. Professor Balganesh's interpretation of how transformative use is intended and works in practice is, regrettably, simply wrong; for example, he states "for uses that don't directly modify the substantive content of the work, the transformative use test becomes somewhat meaningless." (page 12). Not only has Judge Leval rejected this erroneous view of what is after all his own theory, but there are many cases to the contrary, such as the Perfect 10 v. Amazon.com case, which Professor Balganesh doesn't cite, and two that he does cite, one incorrectly for holding that such change is required -- the Bill Graham case -- and the Kelly Arriba case which he acknowledges but then cites another law professor who describes Kelly as a misapplication of transformative use. One can regard Kelly as a misapplication if you like, but that doesn't mean the opinion is meaningless; quite the opposite, the P10 case followed it, and Judge Leval has endorsed it as well.

One final example of my problems with the article as currently written; this one illustrates Professor Balganesh's failure to appreciate the role that Congress plays. Professor Balganesh discuses the Supreme Court's 1908 White-Smith opinion holding that perforated piano roles were not a copy of the underlying music. Professor Balganesh interprets the parties' briefs to have raised his foreseeability theory, but is upset that the Supreme Court decided the case on statutory interpretation grounds. Then, and this is regarded as particularly bad, the Court having decided the case on statutory grounds, Congress went ahead and amended the statute, rendering, it is said, the Court's reasoning as redundant. Had the Court decided the case on the foreseeabilty ground allegedly argued, Professor Balganesh argues, the Court "might have reached the same conclusion -- but on much surer footing."

I doubt it, and I disagree that deciding a case by interpreting a statutory term represents less footing than deciding the case on behavioral theories espoused in briefs. But in any event, Congress had been deliberating amendments on point years before White Smith was decided, and therefore did not act in response to the opinion, nor did Congress's legislative action render the Court's opinion redundant. The Court was construing the pre-1909 Act statute and Congress was passing a new, omnibus statute. Moreover, Congress did not reverse the Court's interpretation of the term "copy": that interpretation remained the law until the 1976 Act. What Congress did was to create a compulsory license, a license that had nothing to do with forseeability, but which neatly both gave copyright owners for the first time remuneration for the mechanical reproduction of their compositions, and which broke the tying arrangement that underlie the White Smith case.

Professor Balganesh has taken on a very important issue, and he may be the person to see it through, but the article as presently written doesn't. I would love to see the article reworked so that his insights could be more forceful.

Happy Birthday Now Pay the License Fee

I confess to vastly preferring the Beatles' You Say its Your Birthday to the traditional Happy Birthday. (Here is a link to the Beatles singing the traditional song, though). Nevertheless, for copyright geeks, the traditional Happy Birthday has provided fodder for what all that is wrong with copyright. Now, Professor Robert Brauneis of George Washington Law School has blessed us with an exhaustive treatment of the song. Available here on ssrn, the article is entitled "Copyright and the World's Most Popular Song," Professor Brauneis gives us 67 and a half pages of history of the song and the copyright issues surrounding it. He has also generously provided a an amazing resource -- a website hosting over a hundred documents relating to the song:

http://docs.law.gwu.edu/facweb/rbrauneis/happybirthday.htm

The article is a tour de force of historical research as well as a probing inquiry into how copyright works that have fallen into the public domain can still command serious income through the inability of others to spend the time and money to track down the provenance of the claims to copyright in them. For those interested in the economic effects of term extension, here are some statistics Professor Brauneis offers: "In the late 1940s and early 1950s, the song generated revenues in the range of $15,000 to $20,000 per year. By 1960, the figure was closer to $50,00, and by 1970, over $75,000. But the really dramatic increase in revenue came in the 1980s. By the early 1990s, the song was generating over $1 million per year, and by 1996, reported Forbes magazine, it was 'pull[ing] in slightly less than $2 million a year.'" The Sony Bono term extension did not occur until 2 years later, 1998, while Happy Birthday, then known as "Good Morning to All," was first published in 1893, 115 years ago.

Learned Hand and the Writing of History

Judge Learned Hand's opinion as a district judge in Myers v. Mail & Express Co., 36 Copyright Office Bulletin 478 (S.D. N.Y. 1919) reads in part:

[N]ot only are all the facts recorded in a history in the public domain, since the narration of history must proceed chronologically,—or at least, such is the convention,—the order in which the facts are reported must be the same in the case of a second supposed author. There cannot be any such thing as copyright in the order or presentation of the facts, nor, indeed, in their selection, although that selection may go the highest genius of authorship, for indeed history depends wholly upon a selection from the undifferentiated mass of recorded facts.

Judge Hand's comments reflect a naïve and blinkered understanding of how history is written, and shows that even the great falter on occasion. The passage is full of categorical statements (“the narration of history must proceed chronologically”; the “order in which the facts are separated must be the same in the case of a second author;” “there cannot be any such thing as copyright in the order of presentation of facts;” “history depends wholly upon a selection from the undifferentiated mass of recorded facts”) offered with no support, and overwhelmed by copious evidence from actual histories and writings by historians about the writing of history (historiography). few writers of any kind can produce a readable work without some kind of “plot” or “theme.” As Lawrence Stone wrote: “Thucydides's theme was the Peloponnesian Wars and their disastrous efforts upon Greek society and politics; Gibbon's the decline and fall of the Rome empire; Macaulay's the use of a liberal participatory constitution in the stresses of revolutionary politics.” Even if, in the case of histories, we feel more comfortable with the term narrative, no narrative can be, as Hand suggested, a self-defining, self-selecting, self-ordering aggregation of facts. Professor M.C. Lemon wrote in “The Structure of Narrative,” in The History and Narrative Reader at 108 (Geoffrey Roberts ed. 2001):

[A] chronicle is a kind of calendar. It lists events (or other data) in the order of their dates. For example, one could produce a list of every Act of Parliament ordered (sequentially) according to their dates, or one could chronicle the offspring of a family over the generations. Insofar as their succession of time is the sole principle underlying their manner of presentation, it would appear continuity is the essence of the matter in the construction of a chronicle—and if so, then the chronicle is the narrative in its starkest, hence purest, form. But of course this is not the case. A chronicle's “continuity” is merely abstract, superimposed by the purely formal rationale of the numerical ordering of dates; it is a meaningless continuity. Put formally, the chronicle is structured in terms of “this (then) that,” whereas the narrative is structured in terms of “this then that.” In the narrative form, the “then” has a peculiar, distinctive significance, which transforms a successor of events into a meaningful sequence.

All this leads to three recent, very interesting books and one interesting article on the writing of histories. The first book is John Burrow’s book, published on April 8th, fabulously entitled “A History of Histories: Epics, Chronicles, Romances and Inquiries from Herodotus and Thucydides to the Twentieth Century,” available for $29 at amazon.com. Professor Burrow, an English scholar, has written what might be a "history of ideas", or intellectual history. Professor Burrow relies heavily on the work of others. His is a synthetic effort where the value is in the telling of the tale, the tale being the writing of histories. he is an entertaining writer who assumes no knowledge of the subject. One passage I was struck by is the italicized portion on page 115, about the Roman writer Appian, a younger contemporary of Plutarch:

“There has been disagreement about how far Appian was a mere compiler of other men’s work. It is possible to say with certainty, for example, that his account of Catiline’s conspiracy derived heavily from Sallust, but in general the ancient habit of mentioning source only in cases of disagreement makes it impossible to be sure.”


As I noted in an earlier blog about originality and earlier views on plagiarism, Thomas DeQuincy, in the mid-19th century, vociferously accused others of plagiarism, but he regarded the following three activities as not plagiarism: “(1) when the author improved on the work of the original; (2) when the second author has borrowed from a work so well that known that a well-read reader may be expected to credit the original source; (3) when the borrowing had been unconscious.” It seems that the modern (by which I mean sarcastically within the last ten years or so) view of copying and when one must give attribution is quite against the weight of history.

My favorite of Professor Burrow's discussions are those of the Greek historians Herodotus and Thucydides, each of whom he gives fond attention to and whom he profitably contrasts. Lovers of those two historians are blessed with new books on each historian. David Mendelsohn, a humanities professor at Bard College has a review of the Herodotus book in the April 28th New Yorker. Professor Mendelsohn’s article is a fun read. Both he and Burrow chose to mention this nugget from Herodotus’ well-known digressions (that is, Herodotus’s descriptions of the manners and customs of the Egyptians, Persians and Babylonians in Book II of his history of the Persian Wars (490 to 479 B.C.E.)). The Egyptians, Herodotus wrote “seem to have reversed the ordinary practices of mankind” by “eating in the streets and relieving themselves indoors … the men urinating sitting down, the women standing up, and so on.” (quoted in Burrow page 25). Burrow adds this bon mot, “After recording that the Persians never acted on a decision taken when drunk without reconsidering it when sober, one can see that it was irresistible [for Herodotus] to add that a decision taken sober was always reconsidered when drunk.” If details like these don't make one want to take up Herodotus, nothing will.

The book Professor Mendelsohn was reviewing in The New Yorker was “Landmark Herodotus: The Histories” ($29 from amazon.com) published on November 6, 2007, 952 pages, edited by Robert Strassler (an unaffiliated scholar) and with a new translation by Andrea Purvis. Professor Mendelsohn is quite critical of the translation, finding it “naked and pedestrian,” two descriptions that in this case perhaps are not the most felicitous when conjoined. Lacking any knowledge of Greek (and I don’t know if Professor Mendelsohn knows Greek either; he was a journalist before becoming a humanities professor), I have to pass on his judgment, but he is otherwise highly complimentary about the book and it is easy to see why. The book is copiously annotated with maps, photographs, timelines, numerous footnotes, and scholarly references that greatly assist one on comprehending this quite long war.

The second book, “The Landmark Thucydides: A Comprehensive Guide to the Peloponnesian War,” issued April 1, 2008, is a revised edition (the first one was done ten years earlier). It too is $29 at amazon.com, is 706 pages, is also edited by Mr. Strassler, and has an introduction by Professor Victor Hanson, a professor of Greek at Fresno State University, California. (No translation credit is given that I could find). The format is the same as the Landmark Herodotus, and it has the same very high quality. It is a shame Professor Mendelsohn didn’t discuss the Thucydides book; perhaps that will be his next essay.

Both books are in hardcover. The Thucydides is published by Free Press, a division of Simon & Schuster. The Herodotus is published by Pantheon Books after Free Books turned it down. They both are extremely handsome books. With a price of $29 from amazon (list is $45), they are an amazing value. I proudly own both and despite their weight schlep them (one at a time) on airplanes where they help pass away the time during inevitable flight delays. Both books pay put to Hand’s view of history as well as to the idea that hard copy, mainstream books are a thing of the past. Both books are extraordinary accomplishments. Bravo to all involved.