First of all, we are a society of laws, so ones rights and privileges flow from the law. In our case, our Constitution. Laws and legal precedents form the basis of our legal system. To say the law is irrelevant and your opinion is what counts is silly.
I dont believe anyone has stated that the law is perfect or flawless. Laws are enacted by human beings who are imperfect. Language is often an imperfect method of communicating, so we require courts, lawyers, judges, the ever-evolving zeitgeist tempered by historical precedents to guide us.
While I cant speak for Richard, what I said on the thread you reference is in perfect alignment with my opinion here. What you fail to note is that Harbin is dead while Chris Hart is alive. Were Harbin still alive and had NOT published his routine, I would be of the opinion that while there may or may not be a force of law protecting him, it would be unethical to appropriate his entire act verbatim, as the Dutch woman performer did from Chris Hart.
However, Harbin is no longer alive, his wife is dead and he had no children. You seem to be of the opinion that you have to ask permission to perform even published routines. What about published routines of people who are dead? Even following your rather tortured logic that flies in the face of 100+ years of magic publishing, what you fail to understand is that you may not even be asking the right person if you see something published and want to perform it.
For example if memory serves, Al Koran published a torn and restored newspaper with a dropped piece. Clever, but not Korans plot presentation. I dont know if Frakson created the plot and presentation, but he was doing it back in the early 1930s (not long after the T & R Newspaper was created), popularizing it when he worked in England in the early 1950s which is probably when and where Koran saw him do it. Hed been doing it for almost 20 years by then.
So, following your logic, youd ask Koran for permission to perform something that he published you still wouldnt be on ethical grounds because he would be granting permission for something that wasnt his in the first place. Same thing for the Koran Wallet that looks and works suspiciously like a Himber Wallet.
Do you do a Chop Cup? By your logic you should have asked Al Wheatleys permissionor absent that, his widow, Charlene. Unfortunately, both are dead and, to my knowledge, they never authorized ANY other manufacturer to make the prop. Everything that wasnt manufactured by the Exacto Co. (Chops company) is a knock off.
Now, just to complicate your already spinning head, I think a good argument can be made that the entire Harbin book is in the public domain. When Harbin died his literary heirs became the British Origami Society. Back in the 80s I owned a small publishing company. I knew that Xerox copies of the Harbin book was being sold left and right at magic conventions as well as the famous counterfeit edition that was produced, I believe, by Al Mann.
I wrote to the BOS with the proposition that I produce an oversized trade paper back of the Harbin book that would do several things simultaneously:
1- It would undermine the sales of the unauthorized copies which were readily available to anyone who wanted a copy.
2 It would benefit Harbins literary heirs.
3 It would reinforce the BOSs copyright.
For almost three years I wrote to these people the BOS was headed by a lawyer at the time and each time I would be fobbed off with the response that they were going to have a meeting and discuss this. After two and a half years I called the director by telephone, basically asking him to get off the pot. I offered them a generous percentage AND an exclusive on selling the book in the British Isles. They would do very well on the deal and with authorization, I could advertise in the magic magazines. I thought it win-win proposition for all of us, especially since the book was readily available all over the place
I also pointed out that they were not doing anything to stop the proliferation of the rip-offs and that they might lose their copyright if they didnt enforce it.
They finally had the meeting and wormed out of making a responsible decision by turning over the rights to the Magic Circle. I gave up.
The point being, because they did nothing to protect their property, it is possible to argue that the Harbin book is in the public domain, so with that, there really is no one to ask and owning the book, a legit copy of his book, purchased from a third or fourth party, would legally and morally give you nothing.
If your logic requires you to ask permission of a creator to perform a routine they've published, you are cutting yourself off from an awful lot of material.