Terms of infringement: battling intellectual piracy

Authors have campaigned against intellectual piracy for ages, but defining the crime - and the rights it violates - has never been easy.

Piracy: The Intellectual Property Wars from Gutenberg to Gates

Adrian Johns

Chicago University Press Dh144

While reading

Piracy

, Adrian Johns's lucid but episodic history of the theft of words and ideas, I learnt that the Enlightenment philosopher Immanuel Kant once wrote an essay, little known today, explaining why it was unethical to counterfeit books.

Since I was at home rather than a library when I encountered this fact, I turned to Google Books to satisfy my curiosity, and soon found there a scan of the essay's first English translation, dated 1798. It turns out that Kant didn't think that an author could mount a strong legal case against piracy based on property rights in words. After all, even after pirates copied an author's words, the author himself still had them. It was better for an author to argue that his book was not an object but an exercise of his powers which "he can

concede

, it is true, to others, but never

alienate

".

In other words, Kant explained - in a passage partly obscured by the fingers of the Google technician who turned the pages in the scanner - a pirated book was not to be understood as property that had been stolen; it was rather a speech act that had been compromised.

The business arrangement that an author made with an editor might make it look as if words could be traded like watches or pork bellies, but it just wasn't so. Could there be a fitter representation of copyright's contemporary plight than the fingers of a Google technician obscuring Kant's defence of writer's rights?

An author's consent, Kant cautions in a footnote, "can by no means be presumed because he has already given it exclusively to another", yet Google is struggling to effect exactly this sort of transfer of consent today, as it attempts to win approval for a legal settlement in the United States that will allow it to republish works whose copyright owners have not come forward. I couldn't have read Kant's essay so easily without the Google technician's labour - in fact, without Google, I might not have got around to reading it at all - but her fingers were nonetheless in the way. The internet's attitude toward Kant's words is ambiguous, combining respect, appropriation, liberation and accidental vandalism.

It has been ever thus, Johns's history teaches. By making words, music and images easy to copy and share, the internet may seem to have fractured trust between producers and consumers of culture around the world in a novel way. But in fact, producers and consumers have been in conflict for centuries. Even in the ancient world, writers worried about the theft of their words, and since the seventeenth century, such theft has been called piracy if done to avoid payment or to turn an undeserved profit. Its history, Johns argues, may help us to understand the transition we're living through today and anticipate changes to come.

To that end, Johns tells the story of intellectual piracy in great, if somewhat eccentrically chosen, detail. In addition to the disputed reprinting of books, Johns describes the purloining of an early technique for precipitating Epsom salts, the knock-off of the first kaleidoscope, illicit photolithography of sheet music in the early 20th century, unlicensed radio listening by the citizens of Britain in the 1920s, the American telephone company AT&T's accumulation of patents to shore up its monopoly, the 1984 US Supreme Court decision allowing home videotaping, the amateur anarchy of phreakers (hobbyists who break into phone systems) and hackers (ditto, for computer networks), and the 2006 discovery by the Japanese computer giant NEC of a parallel, pirate version of itself operating in China and Taiwan, complete with warranties, royalty agreements and a research-and-development arm.

This is a motley list, and Johns, a cautious scholar, is reluctant to speculate much about connections between his examples. Indeed, his working definition of piracy is any practice labelled as such by contemporaries. The most he will say is that piratical episodes, involving as they do such core political principles as "privacy, accountability, and autonomy", have usually forced society to reappraise the way art and ideas are authorised, received, and published. Dissatisfied, the reader may attempt a definition of his own. Perhaps piracy is the distribution or reception of another's intellectual property, by a means that deprives the creator of his legitimate profit? But, as Johns points out, such a definition begs the question. The sense of violation in fact preceded the legal definitions of intellectual property. The crime of piracy came first; the formal conception of the right that it infringed followed.

Such a sequence is common in legal history, and it is suggestive in today's context, when the internet's disruption of music publishing is only a decade old, and its disruption of book publishing is just getting started. This month, manufacturers announced a raft of new tablet computers and electronic reading devices. If the devices succeed, thousands of their users will soon be prowling the internet for free or cheap digitised texts. Current laws probably won't be adequate to the challenge. If Johns's history is any guide, whatever laws that replace them will be determined by economic interest, bitter argument and the accidents of personality and partisan political vicissitude.

Consider the forces that shaped literary copyright, which first emerged in England. Little constrained England's first printers, and Johns writes that in such a marketplace, "the bogus could easily crowd out the genuine". Two systems of control arose: the king granted exclusive patents for making certain books or kinds of books, and the Stationers' Company, a private, chartered association of printers and booksellers, kept a registry of titles belonging to its members. The two systems coexisted for a while, faltered together during the English civil war, and then clashed during the Restoration, when advocates of patents argued that the king was the country's supreme power, and the Stationers maintained that authors had a right to property in their words independent of the king.

James II insisted on the priority of royal patents, but he was deposed in the Glorious Revolution of 1688, when the Whig principles of "liberty and property" triumphed over England's monarchical traditions. By 1695, laissez-faire governance had become so absolute that Parliament ceased to back even the rights-orientated Stationers' registry. For the next decade and a half, it was all but impossible to protect literary property in England. This period coincided with the high-seas depredations of Henry Every, William Kidd and Blackbeard, offering a metaphor that proved irresistible: infringement of copyright has been known as piracy ever since.

Johns argues that piracy shaped England's public sphere by widening the distribution of books. "No piracy, we might say, no Enlightenment," he writes, echoing the claims of the pirates themselves. Piracy also induced readers to worry about the authenticity of what they read, so that publishers competed to produce the latest, most accurate text. "A culture of the upgrade, as it were, took hold," Johns writes, which will sound awfully familiar to any purchaser of contemporary software. In this inhospitable business environment, publishers spread the risk of printing and selling a particular title by combining into "congers", trust-like alliances. Having thus created literary property as a social fact, the congers then lobbied Parliament to recognise it as a legal one. In 1710, Parliament obliged by passing the world's first copyright act, though the legislation did not in fact use the word "copyright", left the duration of the protection unclear, and had no authority against unlicensed reprinting in Scotland, Ireland and America.

Johns enjoys reporting the apologetics of pirates, but after the Enlightenment, they tend to be cranky rather than lofty. Samuel Egerton Brydges, for example, opposed copyright because he thought the requirement to deposit copies in national libraries unfairly burdened literary geniuses, who were never popular and therefore always had small print runs. The Philadelphia-based reprinter Henry Carey opposed it because he thought humans had different electrical charges depending on their socioeconomic roles, and copyright, by homogenising culture, destroyed the differentials that allowed current to flow. It isn't evident that these thinkers deserve the care of Johns's explication. It is nice to know, though, that certain self-serving bits of libertarian guff are not new: 19th-century opponents of patenting promised that capitalists almost always reward bright and innovative workers, so why be formal? A sheet-music pirate "king" defended himself in 1904 with the assertion that God meant for music to be shared.

Though Johns is reticent in drawing lessons for today, a few details impress a modern reader. When literary property was abolished in Paris after 1789, cheaply printed, timely, derivative literature flushed everything else out of the marketplace - imagine the final triumph of the Huffington Post over the

New York Times

. Moralistic bullying failed when 19th-century American reprinters tried to agree not to pirate one another's piracies. Turning on consumers led to public relations disaster when the BBC hunted down illicit listeners in the 1920s, and again when Hollywood fought video tapes as home piracy in the 1980s. Unlike bullying and persecution, however, law has sometimes succeeded, especially when law has built on the conventions and courtesies that authors, publishers and readers have aspired to live up to among themselves. Yet some laws have proved so ambiguous that litigants have lost heart, gone bankrupt, or died before they could recover their rights.

In other words, Google's private negotiations with publishers and authors are an excellent start, but to ensure the future of copyright online, the people of the world, through their elected representatives, need to have a look for themselves. Intellectual property has been reconsidered and renegotiated with every new technology, and to hesitate to do so now, out of a timorous respect for earlier compromises, would be a failure of imagination. Google's settlement, for example, proposes to award Google a de facto monopoly on the digitisation of works whose copyright owners cannot be located. If the people and the government were involved, however, such rights could instead be held in a public trust, and licensed out to future competitors as well. Or, instead of carving out an exception for Google's digitisation efforts, legislators might consider reimagining copyright altogether, by making it briefer but stronger - lopping years off its length but adding a speedy enforcement mechanism designed for the online world, and maybe even including protection for a work's artistic integrity, a so-called moral right that European authors already enjoy. There's no reason not to dream, or to act. Broad Kantian principles are all well and good, but history suggests that copyright results from the rather less lofty practices of complaining, standing up for oneself, and haggling.

Caleb Crain is the author of The Wreck of the Henry Clay, a collection of posts and essays from his blog, Steamboats Are Ruining Everything.