The Lay of Leithian

Jon here.

For those of you who knew me over @ Bree you probably remember my obsession w/a certain poem. I talked about it when I first arrived here at Forumshire. I had my own web-site up dedicated to the Lay of Leithian. Recently (several months ago) I took it down for various reasons. You can read up at least a little on it over at Bree, both here:

http://the-hobbit-movie.com/forum/topic/the-lay-of-leithian-is-no-more

and perhaps in a few other posts, like here:

http://the-hobbit-movie.com/forum/topic/why-do-people-feel-that-with-the-hobbit-movie-everything-needs-to-be-linked/page/6

Well...

...for those interested:

My old site has ironically, unbeknownst to me, risen from the dead. All of the text of the poem and tale, as I had compiled it, can be seen now at:

http://tolkienleithian.blogspot.com/

Someone went back and gleaned it all, apparently, from archived sources at google (or had made copies of it at one point when it was still up) and then turned around and compiled it again in a new blogspot site. (It wasn't me that did this! And who ever it was didn't mention my name... although that might be a mixed blessing...)

Anyway... all of my commentary has been stripped out, so you can't see where one fragment of source material ends and another begins. Nor can you see where I've altered things to match latter versions of the tale or my explanations for the alterations. But for those curious to see my text it is posted out there... but not by me!

Anyway, it's flattering to know someone liked it so much that they turned around and posted it up again. It must have been a pain to do so. I know the original was!

What a shame your commentary is gone Jon, but I still recommend the Lay to everyone- I thought you did an excellent job on it and it seems I was not alone in that thinking if someone has resurrected it for you.

I take it the missing prologue is the original found in FotR?

I wasn't aware that there were further fragments, good job filling it in!  What happened to your original text?  Was it all typed directly into the blog and so lost, or did you write elsewhere then cut and paste?  I hope the second. BTW, I'm sure so long as what you did is documented as is done in a journal, the Tolkien estate shouldn't have problems with it being on the web.

Oh, read your second link - it was blogspot that had the problem. Why not just put up a web page instead? Web page hosts aren't as particular.

I really enjoyed your take on the Lay and also your commentary when it was up, Jon. It's a shame the Estate sent you a DMCA take-down request, though I can see where they're coming from. It's nice to be able to peruse your work still, though it's kinda iffy having it lifted wholesale like that. That happened with some of my work once, though at least the guy gave me credit. :/

@ Eld -

Actually it wasn't the estate. I wrote them asking them if they wanted me to take it down saying that I would understand if they did but they never asked me to do so. This was long before I was contacted by Blogspot and told to take down most (but, strangely, not all) of the site. It was the lawyers over at Google (that owns Blogspot) that got nervous and asked me and a number of other people to take down our cites. There was another Lay of Leithian site @ blogspot that was put up by Geoff Zeiger that was also taken down - and another site by someone else that had the entire Book of Lost Tales up on it. This latter one, I think, was probably the profoundest concern for them, or at least that's what I'd imagine. I heard from Geoff about his own site - he at first thought that it was the Tolkien Estate giving him grief but after our exchange realized that it was as I had said. They were just being cautious, that's all.

But now my site lives again! Now it is the Lay returned from the grave! The Lay of the Walking Dead!

"The Eldar afterwards called that country Dor Firn-i-Guinar, the Land of the Dead that Live..." How apt!

Better yet, the last fragment I gave, dug out from the back pages of The Lays of Beleriand:

"Where the forest-stream went through the wood,
and silent all the stems there stood
of tall trees, moveless, hanging dark
with mottled shadows on their bark
above the green and gleaming river,
there came through leaves a sudden shiver,
a windy whisper through the still
cool silences; and down the hill,
as faint as a deep sleeper's breath,
an echo came as cold as death:
'Long are the paths, of shadow made
where no foot's print is ever laid,
over the hills, across the seas!
Far, far away are the Lands of Ease,
but the Land of the Lost is further yet,
where the Dead wait, while ye forget.
No moon is there, no voice, no sound
of beating heart; a sigh profound
once in each age as each age dies
alone is heard. Far, far it lies,
the Land of Waiting where the Dead sit,
in their thought's shadow, by no moon lit.'"

That's really shitty then. I'll echo what Halfwise said about finding an alternative place to post it. It would be neat to have the commentary back and everything.

I actually don't mind so much... I'm more concerned w/finishing it off and then seeing if I can get part or all of it published in a Tolkien Society Journal somewhere... but I'll never get it done if I keep posting to forums like this! Well... maybe one day....

I know that feeling. Good luck with the project, though!

Actually it wasn't the estate. I wrote them asking them if they wanted me to take it down saying that I would understand if they did but they never asked me to do so.

Okay, but did you write to the Estate asking if you could put it up in the first place?

I mean why write to the Estate at all if you were not concerned that you were violating copyright?

No, I didn't.  It started as a private obsession: when reading the Lay in The Lays of Beleriand I wanted to read the latest version of the text all at once rather than read about the brief emendations in the back of the book after having read the earlier version.  So I started to write in the margin: "Go to p. 356", "Return to page 183" and so forth.  Finally I thought to myself "surely someone must have put the latest version strung together up on the web somewhere..."  I searched around and didn't find it.  So I decided to do it myself.  From there the project just ran amok.  After spending a lot of time on it I started to think that it would be worth while to look into getting it published in a Tolkien Society Journal somewhere, either in Part or better yet in full.  It was at that point that I decided that I'd better write them so as not to offend.  But it's true - I didn't ask their permission in the first place.  There were so many other copies sitting out there on the web tho that I didn't really worry about it.  Copyright laws on the web are still pretty nebulous and in their beginning stages so it's not as cut and dry as people might think.  And as you can see from this new site... well... you pull down one copy and someone will just turn around and post another.

I'm not a lawyer but my guess would be that the percentage of someone else's work  -- the amount legally allowed for reproduction in a book -- would hold for a website too.

As I mentioned recently here, I wrote out an 'internal' version of The History of Galadriel and Celeborn, using heaps of texts from JRRT but assembling them in a certain way as to make a 'consistent' story out of the many versions. It violates copyright however, or at least I think it does, so I never published it or posted it anywhere, not to mention that it really is not the work of JRR Tolkien in a very real sense.

Anyway your last example [and not that you said otherwise], might illustrate that someone is [or various people are] willing to violate copyright.

Elthir wrote:"I mean why write to the Estate at all if you were not concerned that you were violating copyright?"

Didn't you read what I posted?  Let me try again and illucidate a little further:

I was not concerned about copyright infringement.  There was not a profound concern regarding copyright infringement.

I did not put the entire poem up all at once.  It was one Canto at a time over the course of many months.  My initial posts were made at a time when Zeiger had no less than 3 different copies of his take on the poem up on three different websites (only one was blogspot) - that's the whole poem (earlier version) up in its entirety and then some.  Other sites, probably corporate or hacker owned, had the entire thing lifted verbatim out of tLoB and were running adds across the top and on the sides (I ran no adds on mine - it was all just text, commentary and cited sources).  I am not telling you this because I think it "wrong" or "right" or to feel good about myself - I'm telling you this because that is the way it is.  That's how the internet is working right now and that's why the legal system in general is approaching it in the way that it does, i.e.: somewhat loosely.  It's designed for people to share things, like their interests, without too much legal repercussion.  Google or Blogspot may be overly cautious for obvious reasons (e.g: they are an easy target) but basically no one's going to care if you post your own website w/a large poem like the Lay on it - not unless you're monetizing the site or engaging in some other abuse.    

Once my own site was large enough I explicitly wrote the Estate and explicitly asked them if they would like me to take it down.  I specifically said that I would understand if they did.  They did not ask me to take it down.  As soon as blogspot asked me to take *part* of the site down I took down *all* of it.  And I have not put it back up anywhere.  But other people had suggested, rightly, that I could post it elsewhere and not be hassled.  The only reason I haven't is for the sake of cordiality: we occupy an odd place in history at the moment where copyright laws (or, more to the point, conventions) are shifting from one mode to another through electronic media and things are becoming blurred in peoples minds (as very clearly they are blurred in your own).  If I'm interested in publishing one day I'm going to want to keep everything as cordial between the Estate and myself as I can.  So I'll keep it down for the moment.

Elthir wrote:"I'm not a lawyer but my guess would be that the percentage of someone else's work  -- the amount legally allowed for reproduction in a book -- would hold for a website too."

I just told you in my previous post that this is not the case.  Didn't you read it before you replied?  I've talked to people in the legal profession re: this topic and your statement is flatly untrue.  Copyright on web-pages just isn't working the way that it would for print distribution, basically for the reasons I've outlined above and in my previous posts.

Your work you just mentioned I would assume you weren't thinking of publishing.  As things developed w/my own work I did want to consider it for publication and, hence, sought comments on it from the fan base.  It was free for anyone to read and comment on.  There was a reasonable application there for having it posted on a web-site.  And I did get comments on it - a couple even from West Africa.

And, regarding a given work that "really is not the work of JRR Tolkien in a very real sense" I've pointed out on plenty of occasions (over on the other forum) that The Silmarillion has plenty of alterations and out-and-out original writing by Christopher (as in a lot, not just a sentence or two - this is clear if one reads tHoME closely) so by your own logic you wouldn't call that "JRR Tolkien" as well, but, basically, the rest of the world would.  That's because that's what editions of old and fragmented works are.  They are the work of an author compiled and occasionally reconstructed by an editor.  Any scholar or academician will tell you the same.  For my own endeavors I thought it best to seek out what other people think and do so on a broad spectrum where anyone could comment if they wanted to.

So, no, I wasn't worried about Copyright law when I first started posting the work up on my site, nor do I think it was an issue for anyone who knew what was going on on the web then or now.  Only when the site grew to substantial size did I start to become concerned (and the completion of the entire tale was a process that took months to get up - in fact a couple of years).  And then my concern was with offending the Tolkien Estate but not so much about anything specific re: copyright laws since I wasn't profiting in any monetary sense from the site.

As far as how my "last example [and not that you said otherwise], might illustrate that someone is [or various people are] willing to violate copyright", as I've pointed out the question as to whether it's a real violation is still up in the air and being fought out in the courts.  So that point really just doesn't hold water (although I'd understand if people were confused and thought it did).

I'd be curious to know how much you've criticized Petty for his "purist edits" of the films for reasons of copyright infringement and whether he takes such criticisms seriously.  My guess is that he likely doesn't.

As far as your own work is concerned I think it's probably overly cautious of you to think that you shouldn't post it at all.  I'd imagine you could do so w/out any fear of repercussion.  But don't post it on Blogspot: they will likely ask you to take it down in a few years when they go through and clean house again just to keep themselves from becoming an open target. It's too bad you haven't posted it tho. It sounds like it would be a really interesting read. I'd be curious to see it myself and I imagine many others would be as well.

I'd be curious to know how much you've criticized Petty for his "purist edits" of the films for reasons of copyright infringement and whether he takes such criticisms seriously.  My guess is that he likely doesn't.- Jon

I take such matter seriously, to a point.
Purist edits of films seem to be a sort of grey area where no sales are concerned.
But if I had to I'd fight my corner on it, and I have nothing for them to take save my liberty, and until they work out a way of getting inside my head they cant take that either.

Elthir wrote: "I mean why write to the Estate at all if you were not concerned that you were violating copyright?"

Jon replied: Didn't you read what I posted?  Let me try again and illucidate a little further: I was not concerned about copyright infringement.  There was not a profound concern regarding copyright infringement.

Yes I read what you wrote, but here you are quoting an earlier question of mine -- you hadn't specifically explained why you wrote to the Estate before I asked you (not in this thread anyway).

I did not put the entire poem up all at once.  It was one Canto at a time over the course of many months.  My initial posts were made at a time when Zeiger had no less than 3 different copies of his take on the poem up on three different websites (only one was blogspot) - that's the whole poem (earlier version) up in its entirety and then some.  Other sites, probably corporate or hacker owned, had the entire thing lifted verbatim out of tLoB and were running adds across the top and on the sides (I ran no adds on mine - it was all just text, commentary and cited sources).  I am not telling you this because I think it "wrong" or "right" or to feel good about myself - I'm telling you this because that is the way it is.

 

Well again this much, at least, is a description that other sites have the poem and so on. This in itself doesn't necessarily tell me about the law.

That's how the internet is working right now and that's why the legal system in general is approaching it in the way that it does, i.e.: somewhat loosely. It's designed for people to share things, like their interests, without too much legal repercussion. Google or Blogspot may be overly cautious for obvious reasons (e.g: they are an easy target) but basically no one's going to care if you post your own website w/a large poem like the Lay on it - not unless you're monetizing the site or engaging in some other abuse.

 

So you are telling me it's 'somewhat loose'. And do you mean no one's 'going to care' because it's currently not against the law for Joe Smith to post an entire something from JRR Tolkien [unless one is 'monetizing' the site or engaging in some other abuse], or because it's not worth going after some guy with his own website, meaning that he's too small to notice much, even though it's still against the law.

Once my own site was large enough I explicitly wrote the Estate and explicitly asked them if they would like me to take it down.  I specifically said that I would understand if they did.  They did not ask me to take it down.

 
Did they actually respond? When I looked into writing to the Estate [not about copyright] from a link on the web, at that time there was a note from them to specifically explain that they have a small staff and any answer could take time.

Elthir wrote: I'm not a lawyer but my guess would be that the percentage of someone else's work  -- the amount legally allowed for reproduction in a book -- would hold for a website too.

Jon replied: I just told you in my previous post that this is not the case. Didn't you read it before you replied? I've talked to people in the legal profession re: this topic and your statement is flatly untrue. Copyright on web-pages just isn't working the way that it would for print distribution, basically for the reasons I've outlined above and in my previous posts.

I did read it Jon, and no where in the post concerned did you say you had talked to anyone in the legal profession, nor did you comment on anything specific like percentages. I note the word guess in my post as well. If my guess is flatly untrue do you have a percentage, something more specific as to what is true?

Are things so different that one is allowed to post an entire work of JRR Tolkien on the web because the internet in general is (as you say) '... designed for people to share things, like their interests, without too much legal repercussion'?

Again, the post to which I responded gave me [at least] no compelling reason to think you were doing anything but pointing out that other people already had notable chunks of Tolkien's work on the web, and stating generally that internet copyright law is 'pretty nebulous' is itself pretty nebulous in my opinion.

  

Your work you just mentioned I would assume you weren't thinking of publishing.  As things developed w/my own work I did want to consider it for publication and, hence, sought comments on it from the fan base. It was free for anyone to read and comment on. There was a reasonable application there for having it posted on a web-site.  And I did get comments on it - a couple even from West Africa.

Okay but seeking comments from a fan base, while reasonable in and of itself [it's a reason], seems also a huge door for the law to open, I would think.

And, regarding a given work that "really is not the work of JRR Tolkien in a very real sense" I've pointed out on plenty of occasions (over on the other forum) that The Silmarillion has plenty of alterations and out-and-out original writing by Christopher (as in a lot, not just a sentence or two - this is clear if one reads tHoME closely) so by your own logic you wouldn't call that "JRR Tolkien" as well, but, basically, the rest of the world would.

 

Well the constructed Silmarillion is not JRR Tolkien 'in a very real sense' -- Christopher Tolkien has himself stated in The War of the Jewels that it is the work of the son, not the father. Nor can the rest of the world call the 1977 Silmarillion JRR Tolkien in all senses incidentally. I wrote 'in a very real sense' to purposely allow for the other side of the coin here, as I was using large amounts of Tolkien, but making many of my own subjective choices to construct the tale.

So, no, I wasn't worried about Copyright law when I first started posting the work up on my site, nor do I think it was an issue for anyone who knew what was going on on the web then or now.  Only when the site grew to substantial size did I start to become concerned (and the completion of the entire tale was a process that took months to get up - in fact a couple of years).  And then my concern was with offending the Tolkien Estate but not so much about anything specific re: copyright laws since I wasn't profiting in any monetary sense from the site.

You profiting or not can hardly be the only concern of the Estate or its publishers in my opinion. No one need buy The Lays of Beleriand [book] if someone puts it all up on the web for free somewhere, for example.

As far as how my "last example [and not that you said otherwise], might illustrate that someone is [or various people are] willing to violate copyright", as I've pointed out the question as to whether it's a real violation is still up in the air and being fought out in the courts. So that point really just doesn't hold water (although I'd understand if people were confused and thought it did).

And I wrote 'might' which was in accord with the point I was making, which was [again] that pointing to mere examples of other people posting the same poem on the web doesn't necessarily illustrate that they are following the law, or even that the law is 'up in the air' about the matter.

Ooh a technical/legal/lore spat- this is new!
Who has the popcorn?   

Well as I said I'm no lawyer but right now I wonder: if one can legally put the entire Lay of Leithian on the web, what about 'more'?

If I'm Joe Smith with my 'little' website and I don't want any money can I put the whole Lays of Beleriand on the web for example, so I can share my interest with everyone and anyone?

Since Jon posted the Lay with commentary he could argue for fair use, but one of the factors used to assess such claims is the proportion of the copyright work that has been reproduced.  Just copying the entire book verbatim, even with commentary, probably wouldn't fly.  But if you're creating a sort of new work constructed from parts of various different published (and copyrighted) sources you might be able to make an argument.  But I'd think it's a long shot even then.

Obviously I'm not a lawyer either, though.

I would hazard not.

To equate to my edits- its the difference between making PJ's version available for free, and making a different version edited from his available free.

Its not the full film (mine are considerably shorter) and its non profit, but the material it uses is copyrighted.

Its seems to be a greyish area so far- there are purist or fan edits out of there of a stack of films (I have the Star Wars New Hope one for example) and I haven't heard of any cases where makers of fan edits have been taken to court- might happen yet.

You never know, I might be the first!


Eldo- the commentaries thing and the fact it not available in that form in any published material are the strongest defences (and is essentially the same defence of a fan edit of a film- the choice of edit is your commentary on it and its not available commercially in that form)

Eldorion wrote:Since Jon posted the Lay with commentary he could argue for fair use, but one of the factors used to assess such claims is the proportion of the copyright work that has been reproduced.

That's what I think too Eldo, and that's why I brought up percentages. The percentage of a given piece cited would seem to be something that could be transferred with respect to the internet.

Although apparently my guess of the same percentage was wrong!

Jon implicitly has another point built in: he was thinking about submitting the poem with commentary to a journal.  Would the journal be attacked for publishing such a thing?  I don't think so, but I may be wrong.  

I suspect that from a legal standpoint publishing the full poem with commentaries is the same as publishing the full poem, but nobody would choose to go after it.

I also suspect (but don't know) that if the poem was pulled out of bits and pieces of the Lays of Beleriand, the percentage may be small enough to qualify for fair use so long as it has attribution and it used for scholarly purposes.

That's how the internet is working right now and that's why the legal system in general is approaching it in the way that it does, i.e.: somewhat loosely. It's designed for people to share things, like their interests, without too much legal repercussion. Google or Blogspot may be overly cautious for obvious reasons (e.g: they are an easy target) but basically no one's going to care if you post your own website w/a large poem like the Lay on it - not unless you're monetizing the site or engaging in some other abuse.

Anyone else have a comment about this? Why will 'no one care' exactly? The answer seems to be Joe isn't making money, but what about publisher and the Estate potentially losing money?

Is this not Joe Smith reproducing an entire poem, in theory?

I can't speak for Jon and I'm not trying to lure him into a "gotcha" moment, but I'd imagine there's no legal difference, and the only reason a small personal website might fly under the radar is because it's not seen as worth going after. But obviously such judgments have to be made by the copyright holder and their lawyers. And they do have an incentive to err on the side of caution and go after every potential violation in order to demonstrate a record of defending their intellectual property that they can refer back to in future cases.

That said, I do think there's a difference between reproducing an entire poem (or novel, or film) and putting it online and posting an edited work that mixes and matches from various sources, even if those sources are copyrighted. But I'm not sure if the law makes the same distinction.

Yes but he isn't producing the entire poem in a form that exists in any published work Elthir.
You cant lose money on the sale of something that doesn't exist.

He is drawing on various individual published sources and combing them all into one complete version of the Lay- which doesn't exist anywhere else.

Now if you are allowed when commenting under fair use allowed to use a percentage of something, then its possible only longer parts taken from one source would fall foul.
Shorter passages taken from other sources with commentary could well be fair use.

Pettytyrant101 wrote:Yes but he isn't producing the entire poem in a form that exists in any published work Elthir. You cant lose money on the sale of something that doesn't exist.

Okay I thought Jon was making a general case there [one can put up the Lay if one is 'Joe Smith' with a little website]; but even if he is referring to what he has done specifically, I think he is using a notably large percentage of a given work.

He is drawing on various individual published sources and combing them all into one complete version of the Lay- which doesn't exist anywhere else.

Yes complete as in 'what exists' (as it isn't finished), but as far as I'm aware, Jon has replaced certain older stanzas or lines with certain newer ones [the later, or newer ones made in the early 1950s or later, that seem intended replace the older versions], all of which are provided in the Lays of Beleriand.

I think that would result in a rather large percentage of the 'Lay of Leithian' even if we were only talking about the pre-Lord of the Rings version.

I think my project was more 'diverse' when it came to sources anyway. Not that that means anything.