 
 
Actually the editors of the <em>Whitman Archive </em>don't see the copyright issues in the way you have said we do.  Our first frequently asked question in the "About the <em>Archive</em>" section is:
 
<em>&gt;Can I have permission to quote a Whitman poem found on your site?</em>
&gt;Whitman's writings are out of copyright. So, yes, you can quote his words without seeking permission from anyone.
&gt;Editorial introductions, annotations, the biography, and the criticism found on this site are under copyright. You can certainly quote from these items within the "fair use" limits of copyright law. If you wish to make more extensive use of these materials, contact the directors, Ed Folsom &lt;<a href="mailto:Ed-Folsom@uiowa.edu" rel="nofollow">Ed-Folsom@uiowa.edu</a>&gt; or Ken Price &lt;<a href="mailto:kprice@unlnotes.unl.edu" rel="nofollow">kprice@unlnotes.unl.edu</a>&gt;.
We are not experts in copyright law, and it is possible that we have articulated our position inadequately elsewhere on the site, in particular in the "Conditions of Use" section.  Specific pointers for better language would be welcome.  With regard to images (of, say, poetry manuscripts), we have had to adhere to the wishes of the repositories owning the originals.  Some of them have been quite insistent that in giving us the right to publish an image they are not giving us the right to pass a high resolution image on to other people.
With regard to the transcription of Whitman's words: we make no claim to copyright on the HTML rendering of Whitman's words as displayed on the site.  Underlying the HTML, as you know, is XML, and that XML is a combination of transcription and interpretive markup. We do regard the XML markup as our intellectual labor and claim ownership of it.  Even as we claim the rights to that markup, we distribute it via a Creative Commons license and invite scholars and other interested users to download the markup and change it or improve upon it as they see fit.  They are only required to note the original source of their work.