Conde Nast side calls Blackmask publisher ‘a rogue'; World eBook Library removes Doc Savage & friends

Blackmask"The defendant may fancy himself an electronic Don Quixote, swaggering across the Internet, claiming the right to scan and sell whatever he pleases, as if he were challenging settled notions of copyright ownership for the good of the public. But he is just a rogue." - Conde Nast-related memorandum of law, in the corporation's case against against Blackmask--as quoted by Andrews Publications, now part of Westlaw. The TeleRead take: No, I have not heard again from Blackmask proprietor David Moynihan, whom Conde Nast calls "David Leach." That, in fact, is how a whois listing identifies the owner of blackmask.com. With "Leach" and piracy accusations in mind--as in to "leach" off copyright-holders?--are certain punsters in law school rooting for this case to be famous? I just wish the people involved would reach a compromise. As problematic as I consider David's legal arguments despite my sympathy for the public domain, I miss Blackmask a lot.

Meanwhile I’m more curious than ever about the status of the Doc Savage and Shadow items listed with the World eBook Library and the Project Gutenberg Consortia Center. I found the following notice at the World eBook Library when searching for a Doc Savage title: “The eBook you are looking for has been temporar[il]y removed. This is due to current negotiations with Blackmask Online and Conde Nast Publications. We hope that this title will be [restored] shortly. The Shadow, The Avenger, and Doc Savage will be unavailable during this period.”

Related: Is this why Conde Nast went after Blackmask?

(Thanks, Jose, for the Andrews pointer.)

29 Comments on Conde Nast side calls Blackmask publisher ‘a rogue'; World eBook Library removes Doc Savage & friends

  1. Howard Bernier // June 21, 2006 at 7:10 am //

    Here is the notice recently posted from Gutenberg

    World eBook Library Consortia

    The eBook you are looking for has been temporary removed. This is due to current negotiations with Blackmask Online and Conde Nast Publications. We hope that this title will be resorted shortly. The Shadow, The Avenger, and Doc Savage will be unavailable during this period.

  2. Thanks, Howard. Unfortunately, at least when I tested things, that notice doesn’t always show up. Luckily (1) I finally ran across the notice when I was revising the item, and (2) you were there with that useful post, in case I hadn’t noticed. My appreciation.

  3. The way the proverbial wheels of justice grind, it may be a long time before we see Blackmask again, if at all. I know most of the books are available at Project Gutenberg and other sources but they were so easy to find at Blackmask and you could browse through categories and new additions. Gutenberg, as excellent an idea as it is, is tedious to go through unless you’re looking for a specific book or author. I also miss the Blackmask forums which were a good source of information although Teleread is much better, I’m glad I found it.

  4. Thanks, A.C. Comments from readers like you and Howard are among the reasons for TeleRead’s success. I’m just hoping that appropriate books can soon be interactive as well. By the way, I totally agree with your depiction of Blackmask as well-organized. Along with manybooks.net, it set the standard for presentation of public domain works. Others had better aesthetics, but the Blackmask site was highly functional. – David

  5. From the findlaw article, did anyone notice that some of the books date back to 1931. Without Sonny Bono, they’d fall out of copyright this year.

  6. Incidentally, does anyone know enough about the Doc Savage rights to venture an opinion? I find it highly unlikely that Moynihan would go off to battle without knowing the specific issues related to Doc Savage’s literary history.

    The article mentions that Moynihan was selling the books. Can anyone confirm that?

    If he is inviting a lawsuit (as his actions seem to indicate), why hasn’t he taken a more public stand on his position?

    Finally, how can the literary community avoid being at the mercy of one website?

  7. Blackmask as always been in the spirit of the stories.

    I could care less what “plans” Conde Nast has,(misguide greed likley). Small publishers will always do a proper job with this. Whereas big publishers tend to water down for the mainstream masses.

  8. There were paper reprints for sale on Blackmask.

    Greed or not, if Conde Nast owns the rights to the material than it is theirs to do with as they wish, and it is not the perogative of Blackmask to simply take what does not belong to them. If he con prove copyright has expired and the work is public domain, then he is in no danger. But he is not claiming that; he is making a claim that the work was his to use by virtue of it not being in print throug the owners; this does not work in copyright cases because copyright protection cannot be lost by any means other than the copyright term expiring.

  9. The original publishers of these books, Street and Smith, were always very careful to renew their copyrights. (As it happens, I looked into the renewal status for a few of their pulps at the Library of Congress a couple of years ago.) Many Shadow and Doc Savage books were reissued in mass-market paperback format in the 60’s and 70’s and the copyright pages of those are typically done in correct form. David said he wasn’t claiming failure to renew, but rather adverse possession. I wish he’d never got started down this path, because it looks like it will destroy what he built.

  10. Garson Poole // June 21, 2006 at 11:08 pm //

    The creators of “The Shadow” and “Doc Savage” entered into a bargain with the people of the United States when they started to publish works in 1931. The length of the copyright term in 1931 was fixed and known. The incentive provided by the copyright law was deemed more than adequate by the creators of these pulp-fiction blockbusters. It is now 2006 and the original agreed upon term of copyright has elapsed for the works written in 1931. These works must now be available to all the people without any copyright restrictions. The bargain must be fulfilled. The original owners have already been compensated.

    The unjustified and avaricious actions of Conde Nast are morally reprehensible. The company is unashamedly stealing form the public larder of creative treasures. The company is brutalizing a man who provided a magnificent website that freely distributed myriad electronic goods for the entertainment and enlightenment of all. Conde Nast’s lawyers are unscrupulously enforcing a sham copyright contract that has been retroactively changed by repellent political chicanery.

    OK. I am practicing my rhetorical skills here. Do you think that this discourse is over the top? Is the vocabulary and phrasing ok? It was somewhat satisfying to write and it reduced my level of exasperation.

  11. I certainly miss Blackmask as well. I somehow knew it was too good to last; I wish I would’ve downloaded more stories before they went dark.

    Out here in Hollywood, they’ve been trying to make a Doc Savage movie for years. Schwarzenegger was attached long ago, though I’m sure that deal is as dead as a doornail now. These projects have a way of being quietly — but endlessly — developed, though. I wonder if somewhere, somehow, someone is getting closer to a movie that might actually get off the ground, and so Conde Nast wants to seal up the rights.

    Wild speculation, but you know what they say: follow the money.

  12. compromise

    Yuk. Compromise is the bane of modern times. People who set themselves up to compromise, get screwed over.

  13. Incidentally, does anyone know enough about the Doc Savage rights to venture an opinion?

    No. Search Teleread for earlier stories and links.

    I find it highly unlikely that Moynihan would go off to battle without knowing the specific issues related to Doc Savage’s literary history.

    From what I understand, he originally did not know, or assumed the rights were not renewed.

    The article mentions that Moynihan was selling the books. Can anyone confirm that?

    I seem to remember he did.

    If he is inviting a lawsuit (as his actions seem to indicate), why hasn’t he taken a more public stand on his position?

    Anything you say can and will be used against you.

    Finally, how can the literary community avoid being at the mercy of one website?

    By starting more websites. Lots. By mirroring existing websites.

    Unfortunately, the owners of such sites need to do meticulous copyright research in order to not fall in the same trap. And because of the DMCA, ISPs tend to be extremely trigger happy.

    Thanks for voting Republicrat.

    if Conde Nast owns the rights to the material than it is theirs to do with as they wish,

    No it’s not. Blackmask is based in the USA, where laws have to be constitutional. The US Constitution allows copyright for a specific reason. It could be argued that granting publishers all rights to a work fails the test and invalidates the law.

    and it is not the perogative of Blackmask to simply take what does not belong to them

    Published works belong to the public. Blackmask’s proprietor is a member of the public. I have no idea why you would claim otherwise.

    What belongs to Conde Nast are the rights to the works, not the works themselves. That’s an important distinction.

    As for whether this is Blackmask’s prerogative or not; Blackmask argued that the law of adverse posession gives them the right to take over the posession of the rights to Doc Savage and so on. Only a court of law can determine whether he is right or wrong.

    The creators of “The Shadow” and “Doc Savage” entered into a bargain with the people of the United States when they started to publish works in 1931.

    Condé Nast has renegotiated the deal with the people, and the people have said “please screw us even harder”. In the unique case of the US however, the people are hostage to the constitution, and it could be argued that this new deal crosses the bounds set by their constitution.

  14. Garson Poole // June 22, 2006 at 7:44 am //

    Branko Collin said: Condé Nast has renegotiated the deal with the people, and the people have said “please screw us even harder”. In the unique case of the US however, the people are hostage to the constitution, and it could be argued that this new deal crosses the bounds set by their constitution.

    Yes, the copyright laws have been modified since 1931 by the “Copyright Act of 1976” and by the “Sonny Bono Copyright Term Extension Act”. The metaphor that you use in your description above is valuable; however, I would modify it somewhat as follows: The media companies paid the politicians generously for the procurement of erotic favors. The politicians then told the media companies “Certainly you may fornicate forcefully with “the people” because they are asleep and while they are in this semiconscious state they are unlikely to complain vehemently”. We must attempt to awaken the sleepers so that they will know what is happening and will struggle against outrageous assault.

    On the topic of the constitution, many of the best legal scholars think that the retroactive change in the term of copyright is unconstitutional. The goal of copyright law is carefully specified in section eight of the constitution as follows:

    To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

    It is impossible to retroactively “promote the progress of science and useful arts” because a new law cannot entice the producers of creative works to create more items in the past. What was created in 1931 can not be changed by a law made in 1976 or 1998. (Note this is a legal argument and not a science-fictional treatise, so we rule out time travel.)

    Professor Lawrence Lessing did argue before the Supreme Court that any retroactive change in length of copyright terms was unconstitutional. Sadly, the Court disagreed. However, the constitution is a living document and its interpretation is fluid. A future more enlightened group of justices will one hopes decide differently. In any case, the actions of the Conde Nast lawyers are morally obtuse.

  15. What I don’t get is why is CN actually bothering with it? The only real value I can see in The Shadow and Doc Savage properties these days is movie deals, and seeing how the Sky Captain essentially tanked, I’d say pulp just doesn’t have much general appeal.

    As for the copyright extensions: they haven’t been negotiated with the people, ever; they’ve been bought from the legislators by the publishing industries. The current trends towards essentially eternal copyright is endangering culture everywhere, and steps should be taken back towards shorter copyright terms, where a work has at least potential chances of going into the public domain in reasonable time, for the benefit of all. The rights-owners of the Shadow and Doc Savage have had plenty of time to make a buck out of them.

  16. Garson, I wanted to point out something that is the flip side of Eldred. What the State taketh away, the State can give back as well. If lawmakers wanted, they could easily revert back to 75 years, even if certain media owners complain. Nothing in the constitution prevents that kind of law. David Rothman’s leading question “Do you think copyright terms are too long?” is exactly the right question to be asking. If it’s too long, change it. Nothing in the constitution or legal precedent is preventing this.

    By not intervening in Eldred, the Court refused to let the rights of “incumbency” (for lack of a better term) become justification for preventing changes to the law.

  17. Legally, Conde Nast is in the right here, assuming the copyright renewals were valid—which I’ve heard from at least a couple of different sources that they are. The renewal notices weren’t available on-line for some time, but that didn’t make them invalid.

    Let’s not get confused here by thinking that just because the law is (in our opinion) morally wrong, Blackmask should have the right to do what it pleases with the books. The law doesn’t work that way—and whether we like it or not, Conde Nast’s position is very likely legally valid.

    Sure, Moynihan can still do what he pleases with the books—but he also has to take the consequences of his actions. That’s called “civil disobedience,” and it was used to great effect by the Civil Rights Movement in the 1960s.

    The part of me that roots for the underdog hopes that Moynihan succeeds in his adverse-possession gambit—but realistically, Conde Nast will probably lawyer him into bankruptcy. And don’t forget the old adage about the man who represents himself having a fool for a client…

  18. The thing that gets me is that the entire Blackmask website is shut down for what is essentially a very small part of its total offerings. Was Blackmask given the option of dropping those works which were legally in question without completely pulling the plug?

  19. Steve DeLong // June 22, 2006 at 4:46 pm //

    Blackmask DID sell paperback versions of the Doc Savage books; I know, because I bought some, and really enjoyed them. Had I known there was going to be trouble, I’d have bought all the stories he’d published, but I got on board late!

  20. AFAIK the site was shut down because the webhost received a cease-and-desist notice. Probably that wouldn’t have happened if David had removed the works in question.

    Certainly he could put it back up somewhere else, without them; but this would happen only if he wanted to, and had the time, the money, and the desire.

    There are plenty of books improperly still in copyright due to the digital mickey-mouse act (aka DMMA), but invoking the Rights of Man isn’t going to change it. Voting for a different set of politicians, that can change it.

  21. Well put, Michael. I remain baffled why David M/L was so eager to do a kamikaze act, except that maybe he was getting tired of running Blackmask.

  22. I live in Poland. Blackmask online was the PERFECT, very well organized source of old and mostly forgotten literature in English.
    For many like me , living in Eastern Europe Blackmask was the best ambassador of USA. Most people here still think an American literature is some famous names of 20th c and the nothing before.
    Sort of -some great writers living among savages like Hollywood, mob, country and western etc

  23. The comment above by Ela is a very nice one–and reminds me again how the real sad thing about all this is that many thousands of readable, enjoyable, quality e-books in many different convenient formats were sucked down the drain in a who’ll-blink-first dispute over titles that were, even by the most generous assessment, sort of a zircon in the diadim of American literature.

  24. I loved Blackmask and wish it was still up…with our without Doc Savage, Shadow, the Avenger…I was using it to work my way through 19th and early 20th century gothic fiction…and having a blast!

    Does anyone know if there’s a way to offer help to the man who ran Blackmask? I always meant to volunteer transcribing or buy a product, but never got around to it, shamefully…

  25. Actually, it sounds to me like the dispute is over who holds the trademark — which is probably what is worth more. (It is almost certain that the company sueing could care less, aside from the fact that certain judges have ruled that the failure to defend one’s copyrights like a starving dog would defend its food consituted abandonment of said copyrights…)

    For the record… There was a Shadow movie, and a Doc Savage movie. Both tanked, and I am doing my best to forget having ever seen the Doc Savage one. (I actually love the Shadow movie, but I’m weird and like bad movies.) It is unlikely another movie for either will be made…

    …especially since it’s incredibly unlikely that Conde Nast shall bother getting the original books republished. It is, on the whole, too expensive to do through traditional means.

    Frankly? I think their best bet would have been to avoid picking on the fanbase — which is what they are doing — and instead urge Blackmask to make a licensing deal. You are allowed to make licensing deals for absurdly low prices, and it would be smart to simply insist that the books they claim be in the pay section, with them getting a share of the sales.

    As several people have pointed out…Conde Nast is not actually making any money off of the books right now.

    It would not actually cost them anything to offer Blackmask a very nice deal to license the books to them — and it is quite possible to license only part of a property — in exchange for all of the books being in the pay-sections and part of the sales.

    The end result? They actually have money coming from an otherwise barren property, good relations with what would be an otherwise stagnant (perhaps even shrinking) fanbase…

    Possibly more importantly, should they get movies made again, they would have a chance of not suffering from what hurt Sky Captian so much: an audiance with no familiarity and thus no understanding of the pulp genre.

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