In an era when a notice of copyright is not required and is of legal utility only in connection with innocent infringement claims, why go to the trouble to affix one at all? I regard notices as a relic of the past, but they do serve other purposes, including for some publishers an opportunity to state their view of the scope of their rights. In an article I wrote with Judge Posner, Fair Use and Statutory Reform in the Wake of Eldred, 92 Cal. L. Rev. 1639 (2004) we pointed out some examples and argued for application of the misuse doctrine for overreaching efforts.
In an article in yesterday's AgoraVox, Canadian law professor Michael Geist also wrote about the problem. He gave an example from a Frommer's guide in which readers were admonished that "The use of any part of this publication in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, or stored in a retrieval system, without the prior written consent of the publisher -- or, in the case of photocopying or other reprographic copying, a licence from the Canadian Copyright Licensing Agency -- is an abridgment of the copyright law."
As Professor Geist pointed out, he (and now me) have abridged Frommer's copyright by reproducing the notice itself. Also amusing is the effort by the publisher to bind itself to written permission; why, if the publisher subsequently gives oral permission isn't that OK too?
I decided to hunt around and see how others dealt with the issue. One can do this on one's own by going to amazon.com, punching in an author or book title and then going to the copyright page of the book. Some books don't let you look inside, and ironically, none let you copy the copyright notice itself or even print it out. I looked at two, both by Larry Lessig. The first is "Code and the Laws of Cyberspace." The notice for this book reads: "No part of this book may be reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles and reviews." The second is "Free Culture: The Nature and Future of Creativity." The notice for this book reads: "The scanning, uploading and distribution of this book via the Internet or via any other means without the permission of the publisher is illegal and punishable by law. Please purchase only authorized electronic editions and do not participate in or encourage piracy of copyrighted materials. Your support of the author's rights is appreciated."