“PIRACY,” the newly created National Intellectual Property Rights Protection Coordination Center (IPR Center) informs DVD viewers, “is not a victimless crime.” Setting aside the fact that the IPR Center and its partners in the FBI and Department of Homeland Security target this message at precisely the wrong audience — those who’ve chosen to purchase or rent a DVD — the campaign begs a couple of questions. Is this “piracy” actually a “crime”? And more importantly, what exactly is “piracy”?
While content-industry trade groups like the Recording Industry Association of America (RIAA), Motion Picture Association of America (MPAA), and Association of American Publishers (AAP) would doubtless like to take credit for popularizing the term to mean “using creative products without the permission of the creator or rights holder,” “piracy” has meant that for centuries, as Robert Spoo points out in his new book
Without Copyrights: Piracy, Publishing, and the Public Domain (Oxford). But it’s never been so simple, particularly in the United States, long a holdout from international copyright norms. “Piracy” is always a term of rhetoric, suggesting a legal force that it frequently does not have; the word was and is a tool to sway the public and lawmakers. And even as their copyright protections were dramatically expanded in the late 20th century, rights holders sought to broaden the definition of “piracy” and concomitantly shrink the public domain, that ocean of content free for all of us to use.
In
Without Copyrights, Spoo provides a deeply researched case study of the complicated American copyright situation surrounding the great literary landmark of the 20th century, James Joyce’s 1922 novel
Ulysses. He shows that lax and fuzzy copyright laws in the US created a large and fertile public domain that infuriated writers, benefited readers, and provided publishers an opportunity for informal self-governance. But most importantly for the current American debate about intellectual property, Spoo makes clear that “piracy” has never been a clear-cut concept. Rights holders like to define “piracy” as any act of which they disapprove, even when — as with unauthorized publication of
Ulysses in the US, or sampling of funk records in 1980s rap recordings, or uploading clips from TV awards shows to YouTube — those acts are expressly or plausibly legal. In part by using loaded terms like “piracy” to influence legislators and law enforcement agencies, rights holders try, and recently have succeeded, in then expanding the legal meaning of those terms and contracting the cultural commons.
The context Spoo ably recreates, though, is the legal environment governing American publishing from the early 19th century through the post-World War II period. In the 19th century, the so-called “reprint industry,” which mined previously published books, largely British, dominated American publishing. And while reprinters bore most of the fixed costs facing any publishing concern (labor, materials, advertising, distribution) they had one great competitive advantage: they didn’t have to pay their authors. Until 1891, US law extended copyright protection only to works by American citizens, so these reprinters made a business model out of selling British books, generally without ever contacting (much less entering into an agreement with) their authors. It’s hard to think of a more obvious example of “piracy” than this, and authors from Dickens to Wilde fumed about their vast lost revenue. A familiar anecdote describes Dickens fans, desperate to find out whether Little Nell was dead, storming the New York wharves as ships laden with the latest issue of
Master Humphrey’s Clock docked. Some of those impatient fans, though, were probably publishers’ agents, frantic to grab their copies, get back to their presses, and be the first ones to market with a “pirated,” but entirely legal, American edition of the novel.
Frustrating as it was to aggrieved British authors, the law had some justification. The US was a large but largely under-booked nation in the early 1800s. In keeping with the spirit of the US Constitution’s Copyright Clause, which emphasizes that the real goal of copyright is not first and foremost the protection of an author’s rights but the promotion “of Science and useful Arts,” the law subsidized the production and dissemination of books. A lot of books. A lot of
cheap books that would, Congress hoped, spread across (and educate) our widely dispersed and unschooled nation. And while the 1790 Copyright Act assured American citizens of copyright protection, ironically it did little to cultivate a native literary culture: why sign up an American author and pay royalties when one could print a guaranteed seller like Tennyson or George Eliot instead, and pocket the difference? As a result, British literature dominated American reading through the 19th century (with notable exceptions such as
Uncle Tom’s Cabin, which was, in a neat turnabout, widely “pirated” in Britain).
If anyone could publish any British author, how, then, did the American publishing industry not consume itself through self-destructive cost-cutting? A professor at the University of Tulsa College of Law, Spoo is sensitive to the important distinctions between common law, legislated law, and informal community norms that carry the force of law, and thus identifies “trade courtesy” as the mechanism that saved publishing houses from bankrupting themselves through competitive discounting. These “pirate” publishers behaved more like a genteel cartel than like bootlegging gangsters, Spoo makes clear. A publisher would make it known among the community of reprinters that he intended to publish a given author or a book. Other publishers, parties to this informal gentlemen’s agreement, respected that publisher’s claim to that title, and renegades were punished through public shaming (manifested in advertisements that questioned the quality or authenticity of their texts) or, in the cases of particularly obstinate transgressors, commercial retaliation. Like Wal-Mart meeting Main Street, colluding reprinters would print their own editions of a violator’s books, pricing them ruinously low or even at a loss in pursuit of the greater good of the stability of the industry. At this time, in fact, while British authors referred to the entire American industry as “pirates,” publishers used the word internally to describe those members of their community who deviated from norms of trade courtesy.
by Greg Barnhisel, LA Review of Books |
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