The Evolution of Copyright

By , January 11, 2012.

The following is an excerpt from Brandew Matthews‘ article, The Evolution of Copyright, which originally appeared in Political Science Quarterly in December, 1890. It traces the “prehistory” of copyright — from ancient Greek and Roman times to the development of the printing press — and gives one explanation for its development.

Perhaps a consideration of the evolution of copyright in the past will conduce to a closer understanding of its condition at present, and to a clearer appreciation of its probable development in the future. It is instructive as well as entertaining to trace the steps by which men, combining themselves in society, in Arnold’s phrase, have afforded to the individual author the sanction of the law in possessing what he has produced; and it is no less instructive to note the successive enlargements of jurisprudence by which property in books—which is, as Lowell says, the creature of local municipal law—has slowly developed until it demands and receives international recognition.

The maxim that “there is no wrong without a remedy,” indicates the line of legal development. The instinct of possession is strong; and in the early communities, where most things were in common, it tended more and more to assert itself. When anything which a man claimed as his own was taken from him, he had a sense of wrong, and his first movement was to seek vengeance—much as a dog defends his bone, growling when it is taken from him, or even biting. If public opinion supported the claim of possession, the claimant would be sustained in his effort to get revenge. So, from the admission of a wrong, would grow up the recognition of a right. The moral right became a legal right as soon as it received the sanction of the State. The State first commuted the right of vengeance, and awarded damages, and the action of tort was born. For a long period property was protected only by the action for damages for disseizin; but this action steadily widened in scope until it became an action for recovery; and the idea of possession or seizin broadened into the idea of ownership. This development went on slowly, bit by bit and day by day, under the influence of individual self-assertion and the resulting pressure of public opinion, which, as Lowell once tersely put it, is like that of the atmosphere: “You can’t see it, but it is fifteen pounds to the square inch all the same.”

The individual sense of wrong stimulates the moral growth of society at large; and in due course of time, after a strenuous struggle with those who profit by the denial of justice, there comes a calm at last, and ethics crystallize into law. In more modern periods of development, the recognition of new forms of property generally passes through three stages. First, there is a mere moral right, asserted by the individual and admitted by most other individuals, but not acknowledged by society as a whole. Second, there is a desire on the part of those in authority to find some means of protection for this admitted moral right, and the action in equity is allowed—this being an effort to command the conscience of those whom the ordinary policeman is incompetent to deal with. And thirdly, in the fullness of time, there is declared a law setting forth clearly the privileges of the producer and the means whereby he can defend his property and recover damages for an attack on it. This process of legislative declaration of rights is still going on all about us and in all departments of law, as modern life develops and spreads out and becomes more and more complex; and we have come to a point where we can accept Jhering’s definition of a legal right as “a legally protected interest.”

As it happens, this growth of a self-asserted claim into a legally protected interest can be traced with unusual ease in the evolution of copyright, because copyright itself is comparatively a new thing. The idea of property was (probably first recognized in the tools which early man made for himself, and in the animais or men whom he subdued; later, in the soil which he cultivated. In the beginning the idea attached only to tangible things—to actual physical possession—to that which a man might pass from hand to hand. Now, in the dawn of history nothing was less a physical possession than literature; it was not only intangible, it was invisible even. There was literature before there was any writing, before an author could set down his lines in black and white. Homer and the rhapsodists published their poems by word of mouth. Litera scripta manet; but the spoken poem flew away with the voice of the speaker and lingered only in the memory. Even after writing was invented, and after parchment and papyrus made it possible to preserve the labors of the poet and the historian, these authors had not, for many a century yet, any thought of making money by multiplying copies of their works.

The Greek dramatists, like the dramatists of today, relied for their pecuniary reward on the public performance of their plays. There is a tradition that Herodotus, when an old man, read his History to an Athenian audience at the Panathenaic festival, and so delighted them that they gave him as a recompense ten talents—more than twelve thousand dollars of our money. In Rome, where there were booksellers having scores of trained slaves to transcribe manuscripts for sale, perhaps the successful author was paid for a poem, but we find no trace of copyright or of anything like it. Horace speaks of a certain book as likely to make money for a certain firm of booksellers. In the other Latin poets, and even in the prose writers of Rome, we read more than one cry of suffering over the blunders of the copyists, and more than one protest in anger against the mangled manuscripts of the hurried, servile transcribers. But nowhere do we find any complaint that the author’s rights have been infringed; and this, no doubt, was because the author did not yet know that he had any wrongs. Indeed, it was only after the invention of printing that an author had an awakened sense of the injury done him in depriving him of the profit of vending his own writings; because it was only after Gutenberg had set up as a printer that the possibility of definite profit from the sale of his works became visible to the author. Before then he had felt no sense of wrong; he had thought mainly of the honor of a wide circulation of his writings; and he had been solicitous chiefly about the exactness of the copies. With the invention of printing there was a chance of profit; and as soon as the author saw this profit diminished by an unauthorized reprint, he was conscious of injury, and he protested with all the strength that in him lay. He has continued to protest from that day to this; and public opinion has been aroused, until by slow steps the author is gaining the protection he claims.

It is after the invention of printing that we must seek the origin of copyright. Mr. De Vinne shows that Gutenberg printed a book with movable types, at Mentz, in 1451. Fourteen years later, in 1465, two Germans began to print in a monastery near Rome, and removed to Rome itself in 1467; and in 1469 John of Spira began printing in Venice. Louis XI. sent to Mentz Nicholas Jenson, who introduced the art into France in 1469. Caxton set up the first press in England in 1474.

In the beginning these printers were publishers also; most of their first books were Bibles, prayer-books, and the like; but in 1465, probably not more than fifteen years after the first use of movable types, Fust and Schoeffer put forth an edition of Cicero’s Offices—” the first tribute of the new art to polite literature,” Hallam calls it. The original editing of the works of a classic author, the comparison of manuscripts, the supplying of lacuna, the revision of the text, called for scholarship of a high order; this scholarship was sometimes possessed by the printer-publisher himself but more often than not he engaged learned men to prepare the work for him and to see it through the press. This first edition was a true pioneer’s task; it was a blazing of the path and a clearing of the field. Once done, the labor of printing again that author’s writings in a condition acceptable to students would be easy. Therefore the printer-publisher who had given time and money and hard work to the proper presentation of a Greek or Latin book was outraged when a rival press sent forth a copy of his edition, and sold the volume at a lower price, possibly, because there had been no need to pay for the scholarship which the first edition had demanded. That the earliest person to feel the need of copyright production should have been a printer-publisher is worthy of remark; obviously, in this case, the printer-publisher stood for the author and was exactly in his position. He was prompt to protest against this disseizin of the fruit of his labors; and the earliest legal recognition of his rights was granted less than a score of years after the invention of printing had made the injury possible. It is pleasant for us Americans to know that this first feeble acknowledgment of copyright was made by a republic. The Senate of Venice issued an order, in 1469, that John of Spira should have the exclusive right for five years to print the epistles of Cicero and of Pliny.

This privilege was plainly an exceptional exercise of the power of the sovereign state to protect the exceptional merit of a worthy citizen; it gave but a limited protection; it guarded but two books, for a brief period only, and only within the narrow limits of one commonwealth. But, at least, it established a precedent—a precedent which has broadened down the centuries until now,’ four hundred years later, any book published in Venice is, by international conventions, protected from pillage for a period of at least fifty years, through a territory which includes almost every important country of continental Europe. If John of Spira were to issue to-day his edition of Tully’s Letters, he need not fear an unauthorized reprint anywhere in the kingdom of which Venice now forms a part, or in his native land, Germany, or in France, Belgium, or Spain, or even in Tunis, Liberia, or Hayti.

The habit of asking for a special privilege from the authorities of the State wherein the book was printed spread rapidly. In 1491 Venice gave the publicist, Peter of Ravenna, and the publisher of his choice the exclusive right to print and sell his Phoenix —the first recorded instance of a copyright awarded directly to an author. Other Italian states “encouraged printing by granting to different printers exclusive rights for fourteen years, more or less, of printing specified classics,” and thus the time of the protection accorded to John of Spira was doubled. In Germany the first privilege was issued at Nuremberg, in 1501. In France the privilege covered but one edition of a book; and if the work went to press again, the publisher had to seek a second patent.

In England, in 1518, Richard Pynson, the King’s Printer, issued the first book cum privilegio; the title-page declaring that no one else should print or import in England any other copies for two years; and in 1530 a privilege for seven years was granted to John Palsgrave ” in the consideration of the value of his work and the time spent on it; this being the first recognition of the nature of copyright as furnishing a reward to the author for his labor.” In 1533 Wynkyn de Worde obtained the king’s privilege for his second edition of Witinton’s Grammar. The first edition of this book had been issued ten years before, and during the decade it had been reprinted by Peter Trevers without leave—a despoilment against which Wynkyn de Worde protested vigorously in the preface to the later edition, and on account of which he applied for and secured protection. Here again is evidence that a man does not think of his rights until he feels a wrong. Jhering bases the struggle for law on the instinct of ownership as something personal, and the feeling that the person is attacked whenever a man is deprived of his property; and, as Walter Savage Landor wrote: “No property is so entirely and purely and religiously a man’s own as what comes to him immediately from God, without intervention or participation.” The development of copyright, and especially its rapid growth within the past century, is due to the loud protests of authors deprived of the results of their labors, and therefore smarting as acutely as under a personal insult.

Copyright and the First Amendment: The Unexplored, Unbroken Historical Practice, Part 4

By , January 02, 2012.

Does copyright conflict with free speech? The idea that it does has gained a lot of traction recently. Yet arguments of a conflict between copyright law and the First Amendment in the United States are relatively new — understanding why the two co-existed for nearly two centuries before these arguments began to appear should prove valuable to current scholarship.

In previous posts, I outlined several explanations for this lack of conflict based on historical documents and court decisions. Copyright laws were passed by the States after provisions for freedom of speech and the press were enshrined in law, indicating that the two were viewed as compatible. At that time, Liberty of the press was defined primarily as an absence of government licensing — even under broader definitions, protecting an author’s copyright was not viewed as offensive to a free press. In part, this was because copyright was conceived as a property right, and liberty does not extend to invasions of other’s rights.

Today I want to present perhaps one of the most important reasons copyright has historically escaped free speech scrutiny.

During their formative years, the liberty of the press and recognition of copyright were seen as means to an end. They shared the same goal — the advancement of knowledge, the arts, and sciences. And they were viewed as complementary, rather than conflicting, means to reach this goal.

Freedom of the Press Goals and Purpose

During the 18th century, at a minimum, the freedom of the press meant an absence of prior restraints on publishing — whether through government licensing or censorship. Noted jurist William Blackstone, who ensconced this minimalist definition of press liberty in his Commentaries on the Laws of England, described the aversion to previous restraints: “To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government.”

The Founding Fathers viewed the liberty of the press as promoting broader goals then this. In a 1774 Letter to the Inhabitants of the Province of Quebec, the First Continental Congress wrote:

The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.

To the Continental Congress, the primary purpose of press liberty was political: a democratic government needs to be openly examined to function. But note the secondary purpose: “the advancement of truth, science, morality, and arts in general.” This is strikingly similar to the later constitutional purpose given for Congress’s copyright authority: “To promote the Progress of Science and useful Arts.”

A Free Press Promotes Knowledge

There are other examples from the 18th and 19th centuries of those who believed one of the purposes of free speech was to encourage knowledge.

The Cato Letters, a series of newspaper articles published in England in the 1720s that served as ideological inspiration for the Founding Fathers, included this oft-quoted passage on the freedom of speech: “Freedom of speech is the great bulwark of liberty; they prosper and die together: And it is the terror of traitors and oppressors, and a barrier against them. It produces excellent writers, and encourages men of fine genius.”

In his preface to the 1738 edition of Milton’s Areopagitica, poet James Thomson 1Copyright scholars will recognize James Thomson as the author of the poem “The Seasons“, which was the subject of two of the most important lawsuits in copyright history: Millar v. Taylor and Donaldson v. Beckett. writes about the importance of this goal of a free press to society:

What is it that distinguishes human Society from a brutish herd, but the flourishing of the Arts and Sciences; the free Exercise of Wit and Reason? What can Government mean, intend, or produce, that is worthy of Man, or beneficial to him, as he is a rational creature, besides Wisdom, Knowlege, Virtue and Science? Is it merely indeed that we may eat, drink, sleep, sing and dance with security that we choose Governours, subject our selves to their administration, and pay taxes? Take away the Arts, Religion, Knowlege, Virtue, (all of which must flourish, or sink together) and in the Name of Goodness, what is left to us that is worth enjoying or protecting? Yet take away the Liberty of the Press, and we are all at once stript of the use of our noblest Faculties: our Souls themselves are imprisoned in a dark dungeon: we may breathe, but we cannot be said to live.

Liberty of the press, as Milton argued for in what is considered one of the “most influential and impassioned philosophical defences” of the principle — here, taking the form of an absence of government licensing or censorship — is a prerequisite to the progress of knowledge, art, and science. Thomson was not alone in this sentiment.

Elsewhere, a London magazine from 1820 described the goal of the liberty of the press like this: “To promote the diffusion of knowledge, to elicit the fruits of genius, to facilitate and to encourage the general interchange of minds and of hearts”

And the first issue of the American Magazine of Useful and Entertaining Knowledge, published in 1834, included a brief article on newspapers, where it was writeen, “The progress of society has been onward, wherever there has been a free press maintained and encouraged. It has chased away much darkness from the civilized parts of the world, and spread light and knowledge in our path.”

Copyright Promotes Knowledge

The copyright statutes passed in the States prior to the drafting of the Constitution use similar language. The acts were passed with the purpose of “the encouragement of literature and genius” and the goal of, for example, “the improvement of knowledge, the progress of civilisation, and the advancement of human happiness.” The means of implementing this purpose to reach the goal was the securing of legal rights to “men of learning who devote their time and talents” to literature and genius. 2See Connecticut Copyright Statute (1783); New Jersey Copyright Statute (1783); Massachusetts Copyright Statute (1783); New Hampshire Copyright Statute (1783); Maryland Copyright Statute (1783); Rhode Island Copyright Statute (1783); Pennsylvania Copyright Statute (1784); South Carolina Copyright Statute (1784); Virginia Copyright Statute (1785); North Carolina Copyright Statute (1785); Georgia Copyright Statute (1786); New York Copyright Statute (1786).

The impetus for these laws came in part from the efforts of authors like Joel Barlow. In 1783, he wrote the Continental Congress in favor of a copyright law. The famous poet and drafter of the Treaty of Tripoli told the Congress, “As we have few Gentlemen of fortune sufficient to enable them to spend a whole life in study, or enduce others to do it by their patronage, it is more necessary, in this country than in any other, that the rights of authors should be secured by law.”

Barlow’s letter encapsulated the reasoning behind the idea of copyright as an incentive to promote knowledge: literary and intellectual works took a considerable amount of time and resources to produce, and given the great public benefits that flow from them, some way of encouraging people to devote their time and resources to producing them was needed.

You can see this idea adopted and explained by others throughout the 19th century. In his famous speech to the English House of Commons in 1841, Thomas Babington Macaulay said:

The advantages arising from a system of copyright are obvious. It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated; and the least objectionable way of remunerating them is by means of copyright. You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may occasionally produce compositions of great merit. But you must not look to such men for works which require deep meditation and long research. Works of that kind you can expect only from persons who make literature the business of their lives. Of these persons few will be found among the rich and the noble. The rich and the noble are not impelled to intellectual exertion by necessity. They may be impelled to intellectual exertion by the desire of distinguishing themselves, or by the desire of benefiting the community. But it is generally within these walls that they seek to signalise themselves and to serve their fellow-creatures. Both their ambition and their public spirit, in a country like this, naturally take a political turn. It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.

In 1853, Charles Bishop Goodrich published The Science of Government: As Exhibited in the Institutions of the United States, a popular early treatise on US government. His section on copyright takes the same view as Barlow and Macaulay:

Another power conferred upon congress was and is designed “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” … The propriety of the power, and of its enlarged and liberal exercise, cannot be doubted. Individuals cannot devote their time and lives to the attainment of extensive or important knowledge, unless they can derive some personal benefit from their labor. In every useful invention, in the production of useful writings, the public have as much, and frequently a greater interest than the individual inventor or writer can have. Every measure which can with propriety be adopted to enlarge and extend the progress of science and of the arts, is calculated to accomplish the elevation of the people, and must therefore be regarded as of the utmost importance. The effect of our system, and the encouragement which it affords to the promotion of knowledge, has been apparent. Much advancement has been made, in fact it may be regarded as characteristic, and may be said of the American people, that they are progressive, inventive, and suggestive, in all their operations.

Patronage

At this point, one might think that the shared goals of a free press and copyright are only coincidental: one could easily find references to other means of promoting knowledge at the time. For example, in his first State of the Union address, President George Washington told Congress, “There is nothing which can better deserve your patronage than the promotion of science and literature,” but left it to them to decide “Whether this desirable object will be best promoted by affording aids to seminaries of learning already established, by the institution of a national university, or by any other expedients.”

Yet as the ideas of a free press and copyright developed, the relationship between the two strenghthened. There was something specific about securing legal rights to authors so that they may profit off their writings that not only advanced the arts and sciences but also advanced the principles of a free press.

As noted above, Macaulay spoke about two ways to remunerate authors: patronage and copyright. He follows that with an explanation of why the latter is more preferable to a free society:

There have been times in which men of letters looked, not to the public, but to the government, or to a few great men, for the reward of their exertions. It was thus in the time of Maecenas and Pollio at Rome, of the Medici at Florence, of Louis the Fourteenth in France, of Lord Halifax and Lord Oxford in this country. Now, Sir, I well know that there are cases in which it is fit and graceful, nay, in which it is a sacred duty to reward the merits or to relieve the distresses of men of genius by the exercise of this species of liberality. But these cases are exceptions. I can conceive no system more fatal to the integrity and independence of literary men than one under which they should be taught to look for their daily bread to the favour of ministers and nobles. I can conceive no system more certain to turn those minds which are formed by nature to be the blessings and ornaments of our species into public scandals and pests.

Like Macaulay, Supreme Court Justice Joseph Story tied the freedom of the press and copyright together. In an 1826 discourse, Story wrote:

One of the most striking characteristics of our age, and that, indeed, which has worked deepest in all the changes of its fortunes and pursuits, is the general diffusion of knowledge. This is emphatically the age of reading. In other times this was the privilege of the few; in ours, it is the possession of the many. Learning once constituted the accomplishment of those in the higher orders of society, who had no relish for active employment, and of those, whose monastic lives and religious profession sought to escape from the weariness of their common duties. Its progress may be said to have been gradually downwards from the higher to the’middle classes of society. It scarcely reached at all, in its joys or its sorrows, in its instructions or its fantasies, the home of the peasant and artisan. It now radiates in all directions; and exerts its central force more in the middle than in any other class of society. The means of education were formerly within the reach of few. It required wealth to accumulate knowledge. The possession of a library was no ordinary achievement. The learned leisure of a fellowship in some university seemed almost indispensable for any successful studies; and the patronage of princes and courtiers was the narrow avenue to public favor. I speak of a period at little more than the distance of two centuries; not of particular instances, but of the general cast and complexion of life.

The principal cause of this change is to be found in the freedom of the press, or rather in this, cooperating with the cheapness of the press. … The daily press first instructed men in their wants, and soon found, that the eagerness of curiosity outstripped the power of gratifying it. No man can now doubt the fact, that wherever the press is free, it will emancipate the people; wherever knowledge circulates unrestrained, it is no longer safe to oppress; wherever public opinion is enlightened, it nourishes an independent, masculine, and healthful spirit. If Faustus were now living, he might exclaim with all the enthusiasm of Archimedes, and with a far nearer approach to the truth, Give me, where I may place a free press, and I will shake the world.

One interesting effect, which owes its origin to this universal love and power of reading, is felt in the altered condition of authors themselves. They no longer depend upon the smiles of a favored few. The patronage of the great is no longer submissively entreated, or exultingly proclaimed. Their patrons are the public; their readers are the civilized world. They address themselves, not to the present generation alone, but aspire to instruct posterity. No blushing dedications seek an easy passport to fame, or flatter the perilous condescension of pride. No illuminated letters flourish on the silky page, asking admission to the courtly drawingroom. Authors are no longer the humble companions or dependents of the nobility: but they constitute the chosen ornaments of society, and are welcomed to the gay circles of fashion and the palaces of princes. Theirs is no longer an unthrifty vocation, closely allied to penury; but an elevated profession, maintaining its thousands in lucrative pursuits.

Copyright: a Critical Component of a Free Press

It would seem that Story and Macaulay’s view of copyright as an integral component of a free press held sway throughout the 18th century and into the 19th.

An editorial calling for copyright protection of newspaper articles appeared in The Reasoner in 1844, in which the authors argued, “If the public desire a really free press, they must not look to it as a source of taxation; and if they are anxious for truth, for elevated and elevating sentiments, for ideas matured by study and reflection, and an honest exposition of grievances, they must recognise original articles as property, and secure them against a plundering appropriation by a copyright.”

British lawyer James Paterson, in an 1880 commentary on the liberty of the press, speech, and public worship, said that “When any person is free to publish whatever he deems interesting or valuable either as a mode of procuring profit to himself or as a means of influencing the minds and will of his fellow-citizens on matters on which union and combination can effect great results, this is the highest mark of freedom.”

Into the 20th century, we can find reaffirmation of these views. Historian Edward Bloom writes:

Recognition of proprietary rights of authors under the Copyright Act of 1709 was an extremely important step in liberating the press. Copyright security helped to stimulate private initiative by providing authors of books some measure of financial independence. By at least partially obviating the economic function of political patrons, the Act of 1709 aided immeasurably in the freedom of the press. 3Edward Bloom, Johnson on a Free Press: A Study in Liberty and Subordination, A Journal of English Literary History (Dec. 1949).

Finally, when legal scholars were just starting to develop the free speech critique of copyright, former Register of Copyrights Barbara Ringer offered these observations:

[T]he concept of copyright changed radically as a result of the revolutionary political movements of the late 18th and 19th centuries, and the first copyright statutes were based on a rejection of autocratic repression and monopoly control and upon a new recognition of individual liberty and the human rights of authors. … Freedom of speech and freedom of the press are meaningless unless authors are able to create independently from control by anyone, and to find a way to put their works before the public. 4The Demonology of Copyright, R.R. Bowker Memorial Lecture, 1974.

The Engine of Free Expression

Nearly two centuries after the Bill of Rights and the first Copyright Act were passed, the Supreme Court said, “[T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” 5Harper & Row v. Nation Enterprises, 471 US 539, 558 (1985).

This metaphor, it would seem, accurately reflects the predominant historical view of copyright. Copyright and freedom of the press were seen as compatible, rather than contradictory, means to promote knowledge and learning. Liberty of the press freed the public from the caprice of the licensor, allowing diverse ideas and sentiments to disseminate. Copyright freed authors from patronage, providing security for the legal rights that encouraged devotion of time and talents to works that promote the progress of art and science.

References

References
↑1 Copyright scholars will recognize James Thomson as the author of the poem “The Seasons“, which was the subject of two of the most important lawsuits in copyright history: Millar v. Taylor and Donaldson v. Beckett.
↑2 See Connecticut Copyright Statute (1783); New Jersey Copyright Statute (1783); Massachusetts Copyright Statute (1783); New Hampshire Copyright Statute (1783); Maryland Copyright Statute (1783); Rhode Island Copyright Statute (1783); Pennsylvania Copyright Statute (1784); South Carolina Copyright Statute (1784); Virginia Copyright Statute (1785); North Carolina Copyright Statute (1785); Georgia Copyright Statute (1786); New York Copyright Statute (1786).
↑3 Edward Bloom, Johnson on a Free Press: A Study in Liberty and Subordination, A Journal of English Literary History (Dec. 1949).
↑4 The Demonology of Copyright, R.R. Bowker Memorial Lecture, 1974.
↑5 Harper & Row v. Nation Enterprises, 471 US 539, 558 (1985).

Copyright and the First Amendment: The Unexplored, Unbroken Historical Practice, Part 3

By , December 19, 2011.

The question I’ve been asking in a series of recent posts is whether history can provide any insight into current claims that copyright law and the First Amendment conflict. As I noted, the Congress’s constitutional authority to secure exclusive rights to creators and the First Amendment’s prohibition on Congress making any laws abridging the freedom of speech and the press coexisted for nearly two centuries before any conflict between the two was suggested by scholars or considered by courts.

Surely there must be something to explain that two hundred years of near silence. And if we can explain it, we should be able to better understand how to approach current debates concerning the two areas of law.

I previously noted that copyright was primarily conceived as a property right in the 18th and 19th centuries, and invasions of property rights were not part of the freedom of the press. I also noted that before the First Amendment was ratified, a majority of the 13 original US states had passed copyright laws after providing for the freedom of the press, lending strength to the argument that the Framers conceived the two as wholly consistent.

As I’ve researched this question, I’ve realized more and more that one of the keys to understanding the history is understanding how people in the 18th and 19th centuries conceived “freedom of speech” and “freedom of the press.”

There’s a certain attraction to an absolutist First Amendment: “No law” means no law. 1First Amendment absolutism was embraced by Supreme Court Justice Black in the mid-20th century but never accepted by courts. Today it is very much a minority view. But that position is not very helpful, since the Amendment doesn’t define “freedom of speech” or freedom of the press. If, on the one hand, “freedom of speech” means one can say anything at anytime without facing liability, then the FDA is acting unconstitutionally when it requires pharmaceutical companies to list side effects of the medication they sell. On the other hand, if “freedom of speech” means only the freedom to agree with the government, then Congress could enact all sorts of constitutional speech regulations. 2This example isn’t hyperbole. As debates over the constitutionality of the Alien and Sedition Acts of 1798 raged, newspaper editor Benjamin Russell wrote, in support of the law, that “it is patriotism to write in favor of our government — it is sedition to write against it.” In this sense, you could argue that everyone is a First Amendment absolutist, the disagreement is only over the meaning of “freedom of speech.” 3See Eugene Volokh, What Part of “Make No Law” Don’t I Understand? for more about this.

Freedom of the Press

“What is the liberty of the press?” asked Alexander Hamilton in the Federalist Papers, a question that best illustrates how the concept was perceived at the time.

Nowadays, it is perhaps most common to refer to the right of “free expression” as a combination of the rights of free speech and a free press. 4See, for example, Connick v. Myers, 461 US 138, 154 (1983); United States v. O’Brien, 391 US 367, 377 (1968); New York Times v. Sullivan, 376 US 254, 285 (1964). But when the First Amendment was adopted, freedom of press and speech were distinct enough to be mentioned separately. In a very broad sense, “freedom of the press” was the right to publish that which you had the right to speak — the liberty of the press was the expansion of the freedom of speech “by mechanical means,” as one 19th century author put it. 5James Paterson, The Liberty of the Press, Speech, and Public Worship, pg. 14, (London, 1880); See generally Eugene Volokh, “The Freedom … of the Press”, From 1791 to 1868 to Now — Freedom of the Press as an Industry, or the Press as a Technology? 160 University of Pennsylvania Law Review (2011). Far more debate at the time centered around the meaning of the freedom or liberty of the press than the freedom of speech.

The invention of the printing press allowed the dissemination of speech on a grand scale. As a result, it was soon strictly controlled by political and religious authorities. The idea of a press free from this control in England was influenced heavily by the writings of John Milton and became a reality after the Licensing Act of 1662, which prohibited any printing without a government license, finally expired in 1695.

A full discussion on what the liberty of the press meant after this time is beyond one blog post, so I’ll focus on the key points.

First, liberty of the press, at a minimum, meant that a government could not require prior approval for someone to publish a work. William Blackstone wrote that this liberty “consists in laying no previous restraints upon publications” though it does not forbid subsequent punishment for criminal matter. The reasoning for this was that the ability to subject the press to the power of a government censor or licensor “is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government.” 6Commentaries on the Laws of England, Book 4, Ch. 11.

Thomas Paine wrote about the liberty of the press from an American perspective, explaining how the concept was a result of history:

Nothing is more common with printers, especially of newspapers, than the continual cry of the Liberty of the Press, as if because they are printers, they are to have more privileges than other people. As the term “Liberty of the Press” is adopted in this country without being understood, I will state the origin of it, and show what it means. The term comes from England, and the case was as follows:

Prior to what is in England called the revolution, which was in 1689, no work could be published in that country, without first obtaining the permission of an officer appointed by the government for inspecting works intended for publication. The same was the case in France, except that in France there were forty who were called censors, and in England there was but one, called Imprimateur.

At the revolution, the office of Imprimateur was abolished, and as works could then be published without first obtaining the permission of the government officer, the press was, in consequence of that abolition, said to be free, and it was from this circumstance that the term Liberty of the Press arose. The press, which is a tongue to the eye, was then put exactly in the case of the human tongue. A man does not ask liberty before hand to say something he has a mind to say, but he becomes answerable afterwards for the atrocities he may utter. In like manner, if a man makes the press utter atrocious things, he becomes as answerable for them as if he had uttered them by word of mouth. Mr. Jefferson has said in his inaugural speech, that “error of opinion might be tolerated, when reason was left free to combat it.” This is sound philosophy in cases of error. But there is a difference between error and licentiousness.

Some lawyers in defending their clients, for the generality of lawyers, like Swiss soldiers, will fight on either side, have often given their opinion of what they defined the liberty of the press to be. One said it was this, another said it was that, and so on, according to the case they were pleading. Now these men ought to have known that the term, liberty of the press, arose from a FACT, the abolition of the office of Imprimateur, and that opinion has nothing to do in the case. The term refers to the fact of printing free from prior restraint, and not at all to the matter printed, whether good or bad. The public at large, or in case of prosecution, a jury of the conntry, will be judges of the matter. 7The Political Writings of Thomas Paine Volume 2, pp. 464-65 (J.P. Mendum, ed. 1859).

This prohibition on prior restraints is at the core of the liberty of the press and the one aspect that everyone agrees on. 8See James Wilson, Pennsylvania Ratifying Convention, December 1, 1787: “What is meant by the liberty of the press is, that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government, or the safety, character, and property of the individual.”; Respublica v. Oswald, 1 US 319 (1788); Henry Lee, Report of the Minority on the Virginia Resolutions, J. House of Delegates (Va.), 6:93-9522 January 22, 1799, “In fact the liberty of the press is a term which has a definite and appropriate signification, completely understood. It signifies a liberty to publish, free from previous restraint, any thing and every thing at the discretion of the printer only, but not the liberty of spreading with impunity false and scandalous slanders which may destroy the peace and mangle the reputation of an individual or of a community.”; Commonwealth v. Blanding, 3 Pick. 304 (Mass. 1825); “Besides, it is well understood, and received as a commentary on this provision for the liberty of the press, that it was intended to prevent all such previous restraints upon publications as had been practised by other governments, and in early times here, to stifle the efforts of patriots towards enlightening their fellow subjects upon their rights and the duties of rulers. The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.”; Joseph Story, Commentaries on the Constitution of the United States, 1833: “That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any rational man. … the language of this amendment imports no more, than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person in his rights, person, property, or reputation; and so always, that he does not thereby disturb the public peace, or attempt to subvert the government. It is neither more nor less, than an expansion of the great doctrine, recently brought into operation in the law of libel, that every man shall be at liberty to publish what is true, with good motives and for justifiable ends.”; Patterson v. Colorado, 205 US 454, 462 (1907). What the liberty of the press means beyond that, however, was subject to great debate.

Second, this debate over the nature of the freedom of the press beyond the prohibition on prior restraints revolved largely around libel: whether defamatory, seditious, blasphemous, or obscene. 9See Henry Schofield, 2 Essays on Constitutional Law and Equity 514-29 (1921). Could government punish political criticism? Was truth a defense to published statements that injured an individual’s reputation? 10See Eugene Volokh, The Original Meaning of the Free Speech/Press Clause, Sept. 15, 2008. A great deal of these debates was spurred by the passage of the Alien and Sedition Acts in 1798, which would be the most significant event in free speech history until the espionage and sedition acts passed during World War I (acts which served as the genesis for modern First Amendment jurisprudence). 11See Steven G. Gey, The Brandenburg Paradigm and Other First Amendments, 12 Journal of Constitutional Law 971, 975 (2010).

Copyright rarely entered in any of these debates, and when it did, it only did so peripherally. When Pennsylvania was discussing the ratification of the US Constitution in 1787, for example, one delegate raised the concern that, without a federal bill of rights protecting the liberty of the press, Congress might use its power to secure exclusive rights to authors not to pass a copyright law but to return to a general system of press licensing. 12“Tho’ it is not declared that Congress have a power to destroy the liberty of the press; yet, in effect, they will have it. For they will have the powers of self-preservation. They have a power to secure to authors the right of their writings. Under this, they may license the press no doubt; and under licensing the press, they may suppress it.” Robert Whitehill, remarks of December 1, 1787, in Pennsylvania and the Federal Constitution 1787-1788, pg 771.

But there is enough evidence to suggest that copyright law was generally — and noncontroversially — conceived of as completely outside the scope of the liberty of the press. Enjoining or restraining the publication of infringing material was a permissible prior restraint.

A Permissible Prior Restraint

The shared history of the liberty of the press and copyright law reinforces this idea.

As mentioned above, William Blackstone described the liberty of the press as “laying no previous restraints upon publications.” But elsewhere, he recognized that English courts frequently enjoined publications that infringed on copyright.

In the United States following the Revolutionary War, liberties were jealously guarded by the states. Yet six of the twelve pre-Constitution state copyright acts — Connecticut, Georgia, Maryland, New York, North Carolina, and South Carolina — explicitly gave the author of a work “the sole liberty of printing, reprinting, and vending” that work, suggesting that protection of copyright was compatible with the goals of a free press.

James Iredell, one of the first Supreme Court Justices of the United States, wrote in 1788 while the Constitution was undergoing ratification:

The liberty of the press is always a grand topic for declamation, but the future Congress will have no other authority over this than to secure to authors for a limited time an exclusive privilege of publishing their works. This authority has been long exercised in England, where the press is as free as among ourselves or in any country in the world; and surely such an encouragement to genius is no restraint on the liberty of the press, since men are allowed to publish what they please of their own, and so far as this may be deemed a restraint upon others it is certainly a reasonable one. [Emphasis added.] 13Answers to Mr. Mason’s Objections to the New Constitution Recommended by the Late Convention at Philadelphia, in Pamphlets on the Constitution of the United States, pg. 361.

As noted earlier, the Alien and Sedition Acts of 1798 triggered sharp debate over the liberty of the press. At times, copyright law was used to illustrate how that liberty was a delimited one:

When religion is concerned, Congress shall make no law respecting the subject: when the freedom of the press is concerned, Congress shall make no law abridging its freedom; but they may make any laws on the subject which do not abridge its freedom. And in fact, the eighth section of the first article of the Constitution authorizes them in express terms “to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.” Now if Congress could not make any laws respecting the freedom of the press, they could not secure for limited times to authors their respective writings, by prohibiting those writings from being published and vended, except by those whom the authors should expressly permit. 14Remarks of George Taylor, December 21, 1798, The Virginia Report of 1799-1900, Touching the Alien and Sedition Laws; Together with the Virginia Resolutions of December 21, 1798, pg. 136.

Louisiana, which became a state in 1812, enacted a comprehensive code of laws in 1825. The Code was largely the result of efforts by appointed Edward Livingston, a former member of the US House of Representatives and opponent of the Alien and Sedition Acts, to devise a comprehensive criminal code for the state. Though never enacted, the importance of the Code shouldn’t be underestimated. 15Stuart P. Green, The Louisiana Criminal Code: Ten Proposals for Reform, 2002.

The Code is notable for including a section on “Offenses against the liberty of the press.” As Livingston explained in a preliminary report for the code:

It has generally been thought a sufficient protection to declare, that no punishment should be inflicted on those who legally exercise the right of publishing; but hitherto no penalties have been denounced against those who illegally abridge this liberty. Constitutional provisions are, in our republics, universally introduced to assert the right, but no sanction is given to the law. Yet do not the soundest principles require it? If the liberty of publishing be a right, is it sufficient to say that no one shall be punished for exercising it? I have a right to possess my property, yet the law does not confine itself to a declaration that I shall not be punished for using it; something more is done; and it is fenced round with penalties, imposed on those who deprive me of its enjoyment.

The Lousiana Code of 1825 made it a misdemeanor for anyone to use violence, threats, or other means to prevent a person from exercising their freedom of speech or the press. The only exception for this was the filing of a lawsuit for libel or copyright infringement.

The law also made it against the law for a judge to enjoin, restrain, or prevent the publication of any writing, punishable by a fine ranging from $500-1000 (in 1825 dollars) and a two year suspension. There was only one exception to this:

It is no infringement of the last article to grant an injunction against the publication of any literary work, on the application of a person who shall satisfy the court or judge granting the injunction, that he is the author or proprietor of the work intended to be published, and that the publication will be injurious to his rights.

Similar provisions were nearly adopted by the US Congress itself, though not for the country as a whole.

The District of Columbia was established as the capitol of the United States shortly after the Constitution was adopted and placed under the exclusive control of the federal government. For decades, efforts were made to codify the civil and criminal laws that governed the District. 16Justice Walter S. Cox, Efforts to Obtain a Code of Laws for the District of Columbia, 1898.

One such effort led to a proposed system of laws that was reported in a joint committee of Congress in February of 1832. This code was heavily influenced by Livingston’s Louisiana code; the provisions for offenses against the liberty of the press were imported word for word. The District of Columbia, however, declined to adopt the proposed code.

The idea of copyright as a restraint congruous with the liberty of the press continued throughout the 20th century.

For example, the following is taken from the Columbia Law Review in 1917:

In general, so highly has freedom of speech and of the press been held that, regardless of subsequent punishment, no censorship before publication has been tolerated, and, in consequence, to this day, courts will neither enjoin publications nor allow interference with them, except in the special case where written utterances are a part of a conspiracy to injure property … Similarly, the infringement of a copyright has been enjoined. 17Constitutional Protection of the Right of Freedom of Speech and of the Press 17 Columbia Law Review 622-24 (Nov. 1917).

And this is from the Supreme Court in 1971:

The Congress has authorized a strain of prior restraints against private parties in certain instances … Article I, § 8, of the Constitution authorizes Congress to secure the “exclusive right” of authors to their writings, and no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another. 18New York Times v. United States, 403 US 713, 731 n.1 (1971)(J. White dissent).

So it would seem that throughout the history of copyright, protection of an author’s exclusive rights was not seen as offensive to the freedom of the press.

References

References
↑1 First Amendment absolutism was embraced by Supreme Court Justice Black in the mid-20th century but never accepted by courts. Today it is very much a minority view.
↑2 This example isn’t hyperbole. As debates over the constitutionality of the Alien and Sedition Acts of 1798 raged, newspaper editor Benjamin Russell wrote, in support of the law, that “it is patriotism to write in favor of our government — it is sedition to write against it.”
↑3 See Eugene Volokh, What Part of “Make No Law” Don’t I Understand? for more about this.
↑4 See, for example, Connick v. Myers, 461 US 138, 154 (1983); United States v. O’Brien, 391 US 367, 377 (1968); New York Times v. Sullivan, 376 US 254, 285 (1964).
↑5 James Paterson, The Liberty of the Press, Speech, and Public Worship, pg. 14, (London, 1880); See generally Eugene Volokh, “The Freedom … of the Press”, From 1791 to 1868 to Now — Freedom of the Press as an Industry, or the Press as a Technology? 160 University of Pennsylvania Law Review (2011).
↑6 Commentaries on the Laws of England, Book 4, Ch. 11.
↑7 The Political Writings of Thomas Paine Volume 2, pp. 464-65 (J.P. Mendum, ed. 1859).
↑8 See James Wilson, Pennsylvania Ratifying Convention, December 1, 1787: “What is meant by the liberty of the press is, that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government, or the safety, character, and property of the individual.”; Respublica v. Oswald, 1 US 319 (1788); Henry Lee, Report of the Minority on the Virginia Resolutions, J. House of Delegates (Va.), 6:93-9522 January 22, 1799, “In fact the liberty of the press is a term which has a definite and appropriate signification, completely understood. It signifies a liberty to publish, free from previous restraint, any thing and every thing at the discretion of the printer only, but not the liberty of spreading with impunity false and scandalous slanders which may destroy the peace and mangle the reputation of an individual or of a community.”; Commonwealth v. Blanding, 3 Pick. 304 (Mass. 1825); “Besides, it is well understood, and received as a commentary on this provision for the liberty of the press, that it was intended to prevent all such previous restraints upon publications as had been practised by other governments, and in early times here, to stifle the efforts of patriots towards enlightening their fellow subjects upon their rights and the duties of rulers. The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.”; Joseph Story, Commentaries on the Constitution of the United States, 1833: “That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any rational man. … the language of this amendment imports no more, than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person in his rights, person, property, or reputation; and so always, that he does not thereby disturb the public peace, or attempt to subvert the government. It is neither more nor less, than an expansion of the great doctrine, recently brought into operation in the law of libel, that every man shall be at liberty to publish what is true, with good motives and for justifiable ends.”; Patterson v. Colorado, 205 US 454, 462 (1907).
↑9 See Henry Schofield, 2 Essays on Constitutional Law and Equity 514-29 (1921).
↑10 See Eugene Volokh, The Original Meaning of the Free Speech/Press Clause, Sept. 15, 2008.
↑11 See Steven G. Gey, The Brandenburg Paradigm and Other First Amendments, 12 Journal of Constitutional Law 971, 975 (2010).
↑12 “Tho’ it is not declared that Congress have a power to destroy the liberty of the press; yet, in effect, they will have it. For they will have the powers of self-preservation. They have a power to secure to authors the right of their writings. Under this, they may license the press no doubt; and under licensing the press, they may suppress it.” Robert Whitehill, remarks of December 1, 1787, in Pennsylvania and the Federal Constitution 1787-1788, pg 771.
↑13 Answers to Mr. Mason’s Objections to the New Constitution Recommended by the Late Convention at Philadelphia, in Pamphlets on the Constitution of the United States, pg. 361.
↑14 Remarks of George Taylor, December 21, 1798, The Virginia Report of 1799-1900, Touching the Alien and Sedition Laws; Together with the Virginia Resolutions of December 21, 1798, pg. 136.
↑15 Stuart P. Green, The Louisiana Criminal Code: Ten Proposals for Reform, 2002.
↑16 Justice Walter S. Cox, Efforts to Obtain a Code of Laws for the District of Columbia, 1898.
↑17 Constitutional Protection of the Right of Freedom of Speech and of the Press 17 Columbia Law Review 622-24 (Nov. 1917).
↑18 New York Times v. United States, 403 US 713, 731 n.1 (1971)(J. White dissent).

Copyright and the First Amendment: The Unexplored, Unbroken Historical Practice, Part 2

By , December 08, 2011.

Last week I began writing about the unexplored history surrounding copyright law and the First Amendment. To sum up: in the past four decades, there has been a lot of scholarship concerning a potential conflict between the Copyright Clause of the US Constitution and the free speech and press protections of the First Amendment. Since then, courts have also dealt with the interplay of the two — most notably the Supreme Court in Eldred v. Ashcroft.

But before than — nothing. Nearly two whole centuries passed from when the Copyright Clause and First Amendment became the law of the land until Melville Nimmer wrote Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press? in 1970.

History gives us very little reason why this is. Discussion and debates surrounding First Amendment’s adoption are “void of any reference to its relationship with provisions of the original Constitution such as the Copyright Clause.” 1Joseph P. Bauer, Copyright and the First Amendment: Comrades, Combatants, or Uneasy Allies? 67 Washington and Lee Law Review 831, 839 n.28 (2010).

As a result, most of the academic attention on the subject has relied on things other than history to examine the perceived conflict. Courts too — Eldred devoted only two sentences to the history of the two clauses: “The Copyright Clause and First Amendment were adopted close in time. This proximity indicates that, in the Framers’ view, copyright’s limited monopolies are compatible with free speech principles.”

I think history can shed some light on this “unbroken practice” of copyright and free speech coexisting. 2To be clear: right now I’m only seeking to describe the historical relationship between copyright and free speech, not make any arguments about how courts and policy makers should treat the relationship today. I think history can inform the approach to that relationship, but I don’t want to give the impression that I’m arguing that “this is how it was, so this is how it should always be.” Last time, I noted that one of the reasons that may explain why little was said on the subject for nearly two centuries was that a copyright was generally conceived of as a property right, and the liberty of the press did not extend to invasions of property rights.

Is Copyright Law Unconstitutional?

Today, I want to point out a specific claim that is not supported by history.

In a recent post, Stephan Kinsella puts out a version of the claim:

Clearly copyright is form of censorship. Clearly the First Amendment prohibits federal censorship laws. So: the First Amendment later, and thus implicitly repealed the copyright clause. Or at least the copyright act–the way it’s implemented to permit books to be banned and movies burned.

The more I think about this, the more I think it’s correct. There is a tension between copyright’s censorship, and the free speech and free press protections in the First Amendment (as there is a “tension” between antitrust and IP law). But since the free speech provisions came later, in case of conflict, they prevail. Copyright has to go. It is unconstitutional.

Kinsella is not the first to say this. For example, this is from a 1986 law review article: “Arguably, then, the [Copyright] Act is unconstitutional, since the free speech guarantee is an amendment which supersedes prior inconsistent constitutional text.” 3David E. Shipley, Conflicts Between Copyright and the First Amendment After Harper & Row, Publishers v. Nation Enterprises, 1986 BYU Law Review 983, 985 (1986).

Other free speech critics of copyright law, while not adopting the view that the First Amendment rendered the Copyright Clause unconstitutional, use the timing of the two provisions to raise uncertainty in the arena. 4See, for example, Joseph P. Bauer, Copyright and the First Amendment: Comrades, Combatants, or Uneasy Allies? 67 Washington and Lee Law Review 831, 839 (2010). In general, however, speculation concerning the constitutional firmity of Congress’s copyright power is a minority view. 5“The view of the First Amendment entirely displacing the earlier text is universally rejected, I think properly, as to copyright.” C. Edwin Baker, First Amendment Limits on Copyright, 55 Vanderbilt Law Review 891, 893 (2002).

Respected constitutional scholar William W. Van Alstyne points out that “certainly nothing on [the First Amendment’s] face suggests that it in any respect ‘amends’ (that is, displaces) [the Copyright Clause].” 6Reconciling What the First Amendment Forbids With What the Copyright Clause Permits: A Summary Explanation and Review, 66 Law and Contemporary Problems 225, 226 (2003). Later amendments don’t repeal Constitutional provisions unless the repeal is explicit (as with the Twenty-First Amendment) or self-evident (as with the Seventeenth Amendment). 7See Joseph Blocher, Amending the Exceptions Clause, 92 Minnesota Law Review 971, 980-82 (2008).

Freedom of the Press and Copyright Before the Constitution

But there’s an even more compelling reason why the subsequent adoption of the First Amendment wouldn’t have or wasn’t intended to impact Congress’s copyright authority at the time.

Twelve of the original thirteen US states (Delaware was the lone exception) adopted copyright acts between 1783 and 1786 — before the current Constitution replaced the Articles of Confederation.

Of those twelve colonies, five of them provided for the freedom of the press in either their state constitutions or separate bills of rights before passing their own copyright laws: Virginia, 8“XII That the freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by despotic governments.” Virginia Declaration of Rights, June 12, 1776 (Virginia Copyright Act, October 1, 1785). Pennsylvania, 9“XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.” Pennsylvania Constitution of 1776, Declaration of Rights, September 28, 1776 (Pennsylvania Copyright Act, March 15, 1784). Georgia, 10“Article LXI. Freedom of the press and trial by jury to remain inviolate forever.” Georgia Constitution, February 1777 (Georgia Copyright Act, February 3, 1786). South Carolina, 11“XLIII. That the liberty of the press be inviolably preserved.” Constitution of South Carolina, March 19, 1778 (South Carolina Copyright Act, March 26, 1784). and Massachusetts. 12“Article XVI. The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this commonwealth.” Constitution of the Commonwealth of Massachusetts, October 25, 1780 (Massachusetts Copyright Act, March 17, 1783).

Two of the colonies did not enact freedom of the press clauses until after passing their own copyright acts 13New Hampshire — “Article 22. The liberty of the press is essential to the security of freedom in a state: It ought, therefore, to be inviolably preserved.” New Hampshire Constitution, June 2, 1784 (New Hampshire Copyright Act, November 7, 1783); and North Carolina —  “16. That the people have a right to freedom of speech, and of writing and publishing their sentiments; that freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.” North Carolina Ratifying Convention, Declaration of Rights and Other Amendments, August 1, 1788 (North Carolina Copyright Act, November 19, 1785). while the remaining five did not include “bill of rights” style provisions in their constitutions prior to the ratification of the US Constitution. 14Connecticut, which passed the first colonial copyright act, operated under the 1662 Charter of the Colony of Connecticut until 1818. Rhode Island similarly operated under its 1663 Royal Charter until it adopted a constitution in 1842. Maryland, New Jersey, and New York did not expressly mention freedom of the press in their original constitutions.

So by the time delegates arrived to draft the US Constitution, over one third of the states had enacted copyright legislation after providing for freedom of the press. This lends solid support to the idea that early US copyright law was perceived as being wholly consistent with the guarantee of a free press.

References

References
↑1 Joseph P. Bauer, Copyright and the First Amendment: Comrades, Combatants, or Uneasy Allies? 67 Washington and Lee Law Review 831, 839 n.28 (2010).
↑2 To be clear: right now I’m only seeking to describe the historical relationship between copyright and free speech, not make any arguments about how courts and policy makers should treat the relationship today. I think history can inform the approach to that relationship, but I don’t want to give the impression that I’m arguing that “this is how it was, so this is how it should always be.”
↑3 David E. Shipley, Conflicts Between Copyright and the First Amendment After Harper & Row, Publishers v. Nation Enterprises, 1986 BYU Law Review 983, 985 (1986).
↑4 See, for example, Joseph P. Bauer, Copyright and the First Amendment: Comrades, Combatants, or Uneasy Allies? 67 Washington and Lee Law Review 831, 839 (2010).
↑5 “The view of the First Amendment entirely displacing the earlier text is universally rejected, I think properly, as to copyright.” C. Edwin Baker, First Amendment Limits on Copyright, 55 Vanderbilt Law Review 891, 893 (2002).
↑6 Reconciling What the First Amendment Forbids With What the Copyright Clause Permits: A Summary Explanation and Review, 66 Law and Contemporary Problems 225, 226 (2003).
↑7 See Joseph Blocher, Amending the Exceptions Clause, 92 Minnesota Law Review 971, 980-82 (2008).
↑8 “XII That the freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by despotic governments.” Virginia Declaration of Rights, June 12, 1776 (Virginia Copyright Act, October 1, 1785).
↑9 “XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.” Pennsylvania Constitution of 1776, Declaration of Rights, September 28, 1776 (Pennsylvania Copyright Act, March 15, 1784).
↑10 “Article LXI. Freedom of the press and trial by jury to remain inviolate forever.” Georgia Constitution, February 1777 (Georgia Copyright Act, February 3, 1786).
↑11 “XLIII. That the liberty of the press be inviolably preserved.” Constitution of South Carolina, March 19, 1778 (South Carolina Copyright Act, March 26, 1784).
↑12 “Article XVI. The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this commonwealth.” Constitution of the Commonwealth of Massachusetts, October 25, 1780 (Massachusetts Copyright Act, March 17, 1783).
↑13 New Hampshire — “Article 22. The liberty of the press is essential to the security of freedom in a state: It ought, therefore, to be inviolably preserved.” New Hampshire Constitution, June 2, 1784 (New Hampshire Copyright Act, November 7, 1783); and North Carolina —  “16. That the people have a right to freedom of speech, and of writing and publishing their sentiments; that freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.” North Carolina Ratifying Convention, Declaration of Rights and Other Amendments, August 1, 1788 (North Carolina Copyright Act, November 19, 1785).
↑14 Connecticut, which passed the first colonial copyright act, operated under the 1662 Charter of the Colony of Connecticut until 1818. Rhode Island similarly operated under its 1663 Royal Charter until it adopted a constitution in 1842. Maryland, New Jersey, and New York did not expressly mention freedom of the press in their original constitutions.

100 years of Copyright and Disruptive Technology

By , December 05, 2011.

Last week I ran a post collecting a number of pieces that quoted John Philips Sousa and Jack Valenti.

The argument in many of the sources (though not all) goes something like this: The content industry, the entertainment industry, the copyright industries — and by extension the artists, authors, and creators who make their living producing expressive works — fail to see the opportunities presented by new technologies. The history supposedly shows a consistent line of opposition, and the implication is that any current attempts to ensure that the exclusive rights of copyright are accounted for as technology progresses are merely attempts to use law to prop up outdated business models instead of adapting.

And, it seems, a 100 year old quote from a march composer and a 30 year old quote from the president of a film trade association are sufficient proof for this argument.

I’m always skeptical of such broad claims. If you look at history, you’ll find that this story is little more than an apologue, used to add historical weight to influence present day debates. History is useful to the present — but if it is to play a role in debates over copyright law, a more objective history is needed.

Piano rolls and Gramophones

Toward the end of the 19th century, two innovations brought music to the masses: self-playing instruments (primarily player pianos and organs) and recorded music. Prior to this, you could only hear someone else’s song when it was performed by you or someone else.

Most songwriters and composers recognized the opportunities these innovations provided: the audience for their music now included everyone, not just those who had learned to play an instrument. However, at the time, copyright law did not address whether a reproduction of a work onto a mechanical device like a player piano or phonograph was within a composer’s exclusive rights.

In England, in 1899, a committee of the House of Lords held hearings on updating the copyright law of that country. Edwin Ashdown, of the Music Publishers Association, summed up what the issue that would prove to be at the heart of every dispute involving new technology over the next century:

We do not wish to prohibit this thing utterly; altogether we wish the sellers to pay a royalty on every copy they sell. … It is only fair to the owner of the copyright… and I believe these people are sufficiently honourable to pay a royalty if it is imposed, but they want the question settled. If they can do without paying a royalty they prefer it. 1Report from the Select Committee of the House of Lords on the Copyright Bill, pg. 50 (1899).

Indeed, there was no question that the manufacturers of these devices wanted songs that could be played on them: the value of the “hardware” was dependent on the availability of the “software.” But like any business, or anyone for that matter, given a choice between paying for something and not paying for something, they much prefer the latter. The opposition from publishers and composers was not based on fear of innovation.

As Ashdown said earlier in the hearings, “It is not the instrument, it is the things you buy after you have got the instrument that we wish to provide against.”

The question of whether by law composers had exclusive rights over mechanical reproduction was unsettled in the US as well. But not every manufacturer took that as an opportunity to keep from compensating the composers that made their devices so valuable to the public. By the turn of the century, the Æolian Company, which manufactured player organs, was regularly signing licensing deals with music publishers who were happy to embrace the new technologies. 2Hearings before the Committees on patents of the Senate and House of representatives on pending bills to amend and consolidate the acts respecting copyright, pg. 221 (1908).

A 1908 Supreme Court decision placed mechanical reproductions outside copyright law. 3White-Smith Music Publishing v. Apollo, 209 US 1. Congress responded in 1909 by amending the Copyright Act to include mechanical reproductions. Did this kill recorded music? Just the opposite: jazz, blues, rock, country, hip-hop — the 20th century has been a phenomenal one for music, all easily accessible by any member of the public.

Radio

The invention of radio developed through the late 19th century and early 20th century, and by 1920, the first radio stations were regularlly broadcasting in the US. 4Wikipedia, History of Radio.

Music was a big part of radio from the start. E.C. Mills, chairman of the Music Publishers Protective Association and later member of ASCAP, noted music’s role in the industry:

You can broadcast but one thing—sound. Would it be possible to broadcast the sound of the steam hammers working on an iron building, or the traffic in the streets, and make it entertaining to the people? The two sounds that are interesting in the popular sense— and all the sound that comes over the radio is not interesting; the static holloas in my ears every now and then—the two sounds that can be broadcast are the spoken word in the interesting lecture, information, news, crop reports, market reports, etc., and the melody and harmony of music. Without music broadcasting in its popular phases could not exist. 5US Senate Patents Committee. Hearings to amend the Copyright Act, pg 73 (1923).

The introduction of radio broadcasting coincided with a drop in recorded music sales. 6Stan J. Liebowitz, The Elusive Symbiosis: The Impact of Radio on the Record Industry, 1 Review of Economic Research on Copyright Issues 93 (2004). And, as when phonographs were first introduced, copyright law was unsettled as to whether a copyright owner had control over the broadcast of his music.

But that’s not to say musicians and songwriters opposed radio. Mills, testifying in front of Congress, said flat out:

I am a radio fan; I don’t know but what it is going to bring a divorce into my family. We think that radio is the greatest contribution that science has ever made to man, that it will bring about a universal language, that it will make wars impossible, that it will make the fanner happy, and that in general it will render the greatest service to human kind of anything that has ever been conceived. That is what we think about the radio.

In a 1922 article for Popular Radio magazine, Mills repeated these sentiments:

Radio has developed in such an amazing and spectacular manner that it promises to become the greatest factor the world has ever known for the dissemination of information and education of the whole people. The position of musical copyright proprietors, including authors, composers and publishers, is now and will be in the future to lend their support to any cause or purpose which promises so much for mankind’s benefit, and they therefore do not oppose radio, nor would they handicap or hamper its logical development. 7E.C. Mills, A Public Performance for Profit? Popular Radio, pg 208 (May 1922).

Others who represented musicians were even more embracing of the new medium. M.E. Tompkins, of the Music Publishers Association, said:

Our Committee has been carefully investigating the broadcasting of copyrighted music since last November. In our report, just adopted by the Association, we point out that music publishers are vitally interested in radio broadcasting as a great future user of music and that our rights in the use of our copyrighted music in public performances must be protected. However, we appreciate the fact that radio broadcasting is stillin a chaotic and experimental state and that, while ultimately it will have to be placed on a commercial basis if it is to develop its potentialities, nevertheless the commercial side of the broadcasting problem has not yet been solved.

In view of these facts and also because we desire to co-operate in developing the music possibilities of radio, we believe that we should allow the use of our copyrighted musical compositions for broadcasting without charge for the present, and without prejudice in our rights. 8“Standard” Works are Free, Wireless Age, pg. 29 (June 1923).

Recording labels, still new to the world, were also generally welcoming of the opportunities radio provided their artists. While some were reluctant to let their performers broadcast, primarily because of concerns over the quality of the sound, others were eager.

An article in The Wireless Age from 1923 quotes H. A. Yerkes, assistant general manager of Columbia Graphophone Company, as saying:

We have no set policy directed against radio. In fact, we have urged that our exclusive artists sing for the radio whenever possible. We have even made arrangements for them to do so in certain cases. You can take the Columbia catalogue and go through it and you will find that nearly all the big names in it have been heard by radio.

The article notes, “H. B. Schaad, Secretary of the Aeolian Company made it plain that no unfavorable influence upon the Aeolian business has been noted and that in consequence, cooperation with broadcasters has been determined upon as the present policy of the company. Many prominent artists who have made Vocalion records or Duo-Art reproducing piano rolls have been heard on the air not only through their records and rolls, but personally.”

Otto Heinemann, president of the General Phonograph Corporation, which ran Okeh Records, said:

Radio has a very beneficial effect on the sale of phonograph records.

People who hear the latest hits by radio of course want to hear them again, and they do not want to have to wait until they are sent out again by a broadcasting station. They want to be able to play them at will. And so they go out and buy the records of those hits, and especially the records made by the artists who have played those hits by radio.

That is why we have been making all possible arrangements to have our artists broadcast the latest song and dance hits by radio. We know that it helps the sale of records. There is no doubt about it at all.

The broadcasting stations have been most generous in cooperating with us, welcoming our artists, and even in many cases announcing that they are Okeh artists. This is very beneficial indeed. I think radio is now a very important factor in the sale of new records.

Finally, A.H. Curry, general manager of Thomas A. Edison, Inc., said:

While no definite campaign has been undertaken, the company has in a few instances aided its artists to get on the air through radio. It appreciates the enormous publicity value to be obtained in this way, and it has called the attention of its performers to the advantages of radio broadcasting.

Like the phonograph, what conflict arose due to the introduction of radio wasn’t from fear or failure to recognize its opportunities. It was due to the simple fact that copyright owners have exclusive rights, and those rights should continue to be recognized no matter what technological advances come along, especially if the new industry is benefitting and profitting off the work of others.

E.C. Mill’s colleague Gene Buck, then president of ASCAP, summed up the position of composers this way:

I want to put into this meeting the sense that every member of this organization and myself have a deep respect and a great regard for radio. We have because we always want to go on record and say it is one of the greatest blessings put into the homes of this country. But, gentlemen, the men who take our material and broadcast it and derive a profit from broadcasting must pay the composer, because if they do not you are going to destroy the initiative. 9Id. Hearings pg. 60.

The radio industry resisted any efforts to provide for compensating composers, however. In 1924, the US Senate held hearings on a proposed amendment to exempt radio from having to license public performance rights for the music they played. The hearings were replete with dire predictions that having to pay composers would put an end to the radio industry.

One contemporary magazine article noted, “Radio broadcast flashed conspicuously in the national limelight this week. Not less than 15,000,000 persons are taking an active interest in connection with rapid developments taking place regarding broadcasting in relation to ‘freedom of the air.'” The same magazine included a petition that promised “Every effort is being made through the National Association of Broadcasters to keep the air free and untrammeled by trust control and commercialism.” 10Id. Hearings pg. 94.

Songwriter and ASCAP founder Victor Herbert saw through these claims. During the Senate hearings, he remarked:

A few years ago the phonograph companies came here with practically the same claim, that we were going to ruin them, just as the radio people have come to-day. We must have protection. Instead of taking away from what we have now and what the Constitution of the United States gives us, you should give us more, because that stimulates creation. You protect everything else. You protect trade; you protect the farmers; you try to protect everybody.

The bill failed to pass. A series of court cases in the mid 1920s established that a radio broadcast of music was a public performance, thus within the composer or publisher’s exclusive rights. 11See The Story of John and Jack.

Did the broadcasters’ claims that compensating songwriters would ruin them come true? Not at all. In 1926, it’s estimated that only 1 in 5 households had radio; in less than 10 years, radio had reached 2 out of every 3 households. 12Id. Liebowitz at 107. Even today, with many competing media, 93% of the US population (12 years old and up) listens to terrestrial radio at least once a week, with an average listening time of over 15 hours a week. 13Arbitron, Radio Today 2010.

Television

I’m including television here even though its introduction wasn’t accompanied by the same types of copyright disputes as the phonograph or radio. Yet it certainly was a disruptive technology — television took audiences away from movie theaters. 14Id. Liebowitz pp. 99-103. It should be a perfect place to find evidence of the content/entertainment/copyright industry’s opposition to new technology.

In 1928, Popular Mechanics ran an article called What Television Offers You, where it interviewed a number of those involved in the nascent industry, including Dr. Lee De Forest, inventor of the radio tube. The author of the article also spoke to several in the entertainment industry about their thoughts on the new technlogy. Harry M. Warner, president of Warner Brothers Pictures, had this to say:

Dr. De Forest is absolutely correct in his statement that theater owners have nothing to fear from television. Television will no doubt be an advancement in transmitting photography, but to affect an industry which supplies entertainment is out of the question. On the contrary, should this invention be successful, it will be the greatest help to places of entertainment by stimulating interest directly in the home.

Carl Laemmle, founder of Universal Pictures, shared Warner’s opinions:

In the twenty-two years I have devoted to motion pictures I have never seen the time when science and invention damaged the industry. On the other hand, I have seen the business elevated to an art largely through the help of inventive genius. Therefore, whether television and radio movies are years away or just around the corner, I predict that, when they do come, they will prove a blessing and not a curse, and I sincerely urge those who may be panicky to remember that progress cannot possibly harm them. The very thought that these new wonders may at some time be perfected gives me a thrill of pride and greater confidence in the moving-picture industry.

Companies like Warner Bros. and Universal Pictures, which are still in the business of making movies, wouldn’t have survived nearly a century that was witness to some of the most rapid technological advancement if they failed to appreciate the opportunities of innovation.

Part 2 will look at Cable TV, the VCR, and beyond.

References

References
↑1 Report from the Select Committee of the House of Lords on the Copyright Bill, pg. 50 (1899).
↑2 Hearings before the Committees on patents of the Senate and House of representatives on pending bills to amend and consolidate the acts respecting copyright, pg. 221 (1908).
↑3 White-Smith Music Publishing v. Apollo, 209 US 1.
↑4 Wikipedia, History of Radio.
↑5 US Senate Patents Committee. Hearings to amend the Copyright Act, pg 73 (1923).
↑6 Stan J. Liebowitz, The Elusive Symbiosis: The Impact of Radio on the Record Industry, 1 Review of Economic Research on Copyright Issues 93 (2004).
↑7 E.C. Mills, A Public Performance for Profit? Popular Radio, pg 208 (May 1922).
↑8 “Standard” Works are Free, Wireless Age, pg. 29 (June 1923).
↑9 Id. Hearings pg. 60.
↑10 Id. Hearings pg. 94.
↑11 See The Story of John and Jack.
↑12 Id. Liebowitz at 107.
↑13 Arbitron, Radio Today 2010.
↑14 Id. Liebowitz pp. 99-103.

Copyright and the First Amendment: The Unexplored, Unbroken Historical Practice

By , November 22, 2011.

“If you would understand anything,” said Aristotle, “observe its beginning and its development.”

Understanding the historical relationship between copyright and the First Amendment is especially relevant today, with free speech concerns raised over pending rogue sites legislation — the PROTECT IP Act in the Senate and the Stop Online Piracy Act in the House — and domain name seizures — the Second Circuit will be hearing arguments about whether the seizure of the Rojadirecta domain names constitute a prior restraint in December.

Copyright law has long provided for preliminary injunctive relief (I believe the provisions of PROTECT IP and SOPA can be seen as a species of preliminary injunctive relief), and to a lesser extent, seizure and forfeiture. Over much of the 20th century, courts have turned to the First Amendment to strengthen procedural requirements in cases involving obscenity, libel, or news reporting. Yet preliminary relief for copyright infringement — whether injunctive, through actual seizures, or otherwise — has remained immune from any successful procedural First Amendment challenge.

Why is this?

The question is difficult to answer because most of the attention on the relationship between copyright and free speech has come only recently. Until the late 1960s, the idea that there exists any tension between the First Amendment’s prohibition on government restrictions of expression and copyright law’s encouragement of expression was nearly nonexistent. Since then, however, and especially after the passage of the Digital Millennium Copyright Act and Copyright Term Extension Act in the late 1990s, many have turned their attention to finding contradictions between free speech and copyright. 1More detail on the history of copyright and First Amendment scholarship at my post, Copyright and Censorship.

While the focus on contradictions is recent, earlier scholars had noted that copyright infringement at the very least plays by different rules when it comes to the First Amendment:

It is quite evident that no new principles of liberty were intended to be set forth by the First Amendment, and that, however enticing a philosophical theory of freedom of the press and of speech may be, the guaranty must be construed with reference to the common law which gave it birth. When Blackstone declared in 1769 that the liberty of the press consisted in placing no previous restraints upon publications, he was not laying down a new principle of constitutional theory, but merely stating what he believed to be the existing law. Apparently his generalization was too broad. Injunctions against the infringement of a copyright were not infrequent in his day. 2Freedom of the Press and the Injunction, Columbia Law Review, Vol. 13, No. 8, pp. 732-734 (Dec. 1913).

This quote suggests that the reason why equitable remedies for copyright infringement — injunctions and seizures especially — have withstood First Amendment scrutiny where those same remedies would fail in other cases remains somewhat of a mystery.

The beginnings and development of copyright and the First Amendment are still under-observed: Eldred v. Ashcroft devoted a scant two sentences to that history to show that, since the Copyright Act of 1790 and the First Amendment were adopted close in time, they are compatible.

I believe a closer look at the historical record can shed more light on this mystery (though I don’t mean to suggest in any way that I am the first to do so). 3See, for example, Edward Lee, Guns and Speech Technologies: How the Right to Bear Arms Affects Copyright Regulations of Speech Technologies (2008) — and I’m always interested in learning about other examples. I think this historical record shows a number of reasons why copyright law, though not “categorically immune from challenges under the First Amendment”, 4Eldred v. Ashcroft, 537 US 186, 221 (2003). has nevertheless existed comfortably alongside the First Amendment.

The first reason is that legal thinkers primarily conceived of copyright as a property right. Property is on the same footing as life and liberty. Freedom of speech, or freedom of the press, ends where deprivation of property begins.

Literary Property

Of course, any mention of “copyright” and “property” in the same sentence nowadays can cause some to go in a tizzy. Partly this is due to an impoverished concept of property; that property only refers to tangible objects (forgetting about intangibles like stocks, bonds, promissory notes, and other financial instruments), or that copyright can’t be property because infringement doesn’t deprive the holder of possession or ownership (except if I smash your car window, we’d say I violated your property rights even though you still possess the same amount of glass). Setting aside these naive arguments, the modern critique of copyright as property goes something like this: Although it is entirely correct to characterize copyright as property in a descriptive sense, we shouldn’t characterize copyright as property in a normative sense, because that would be bad, from a policy standpoint. 5See, for example, William Patry, Does it matter if copyright is property? Patry Copyright Blog, June 20, 2006, “What those who seek to have copyright classified as property is clear enough though: Blackstonian sole dominion, justified by the very classification of property … But what if copyright is just a tort, as indeed courts refer to it as. Might that not lead to consideration of things in a different light, one that involves more of the balancing of interests one typically sees, say in, negligence actions, a Coase Theorem of copyright?”;  Siva Vaidhyanathan, Copyright as Cudgel, Chronicle of Higher Education, Aug. 2, 2002. “We make a grave mistake when we choose to engage in discussions of copyright in terms of ‘property.’ Copyright is not about ‘property’ as commonly understood. It is a specific state-granted monopoly issued for particular policy reasons.” These arguments are beyond the scope of this article — I’m concerned with whether copyright was thought of as property when the First Amendment was first enacted.

Indeed it was. In 1792, James Madison wrote that “property” has a “larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage“; this meaning includes more than just “a man’s land, or merchandize, or money.” 6James Madison, Property. Legal scholar Adam Mossoff describes this concept of property as the “dominant” understanding of property in 18th and 19th century America. 7Is Copyright Property? 42 San Diego Law Review 29, 41 (2005).

And copyright certainly fit within this understanding of property at the time — it was referred to as “literary property” more often than not. Copyright was expressly described as property in several of the State copyright acts that predated the US Constitution. 8“Whereas the improvement of knowledge, the progress of civilization, the publick weal of the Commonwealth, and the advancement of human happiness, greatly depend on the efforts of learned and ingenious persons in the various arts and sciencs: As the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves, and as such security is one of the natural rights of all men, there being no property more peculiarly man’s own than that which is produced by the labour of his mind.” Massachusetts Copyright Statute (1783), New Hampshire Copyright Statute (1783), Rhode Island Copyright Statute (1783).

“An act for securing to the authors of literary works an exclusive property therein for a limited time.” Virginia Copyright Statute (1785) (title).

“An Act for securing Literary Property: Whereas nothing is more strictly a man’s own than the fruit of his study, and it is proper that men should be encouraged to pursue useful knowledge by the hope of reward; and as the security of literary property must greatly tend to encourage genius, to promote useful discoveries and to the general extension of art and commerce.” North Carolina Copyright Statute (1785). The Supreme Court has classified and referred to copyright as property throughout its history — in 1823, for example, the Court stated, “The protection of property should extend as well to one subject as to another: to that which results from improvements, made under the faith of titles emanating from the government, as to a proprietary interest in the soil, derived from the same source. It extends to literary property, the fruit of mental labour.” 9Green v. Biddle, 21 US 1, 57; See also Wheaton v. Peters, 33 US 591 (1834), discussing whether “literary property” is perpetual under copyright statute; Stephens v. Cady, 55 US 528, 531 (1853), speaking of the “property in the copy-right”; Canal Co. v. Clark, 80 US 311, 322 (1872), noting the “property” that exists “in copyrights”; Baker v. Selden, 101 US 99, 102 (1880), describing copyright as “exclusive property”; Holmes v. Hurst, 174 US 82, 86 (1899), explaining the nature of the “property” protected by copyright; Bobbs-Merrill v. Straus, 210 US 339, 346 (1908), referring to “copyright property”; Fox Film Corp. v. Doyal, 286 US 123, 127 (1932), “The production to which the protection of copyright may be accorded is the property of the author and not of the United States”; Dowling v. United States, 473 US 207, 217 (1985), exploring the “property rights of a copyright holder”; Stewart v. Abend, 495 US 207, 223 (1990), “the aspects of a derivative work added by the derivative author are that author’s property”.

In 1839, the New York Chancery Court decided Brandreth v. Lance, a libel case and “the first American court decision setting aside a government action on constitutional free speech or free press grounds.” 10Eugene Volokh, Flag Burning and Free Speech, Wall Street Journal, July 3, 2009. But in refusing to enjoin the libelous publication, the court implicitly notes that an injunction for copyright infringement would not infringe upon the liberty of the press:

It is very evident that this court cannot assume jurisdiction of the case presented by the complainant’s bill, or of any other case of the like nature, without infringing upon the liberty of the press, and attempting to exercise a power of preventive justice which, as the legislature has decided, cannot safely be entrusted to any tribunal consistently with the principles of a free government. This bill presents the simple case of an application to the court of chancery to restrain the publication of a pamphlet which purports to be a literary work, undoubtedly a tale of fiction, on the ground that it is intended as a libel upon the complainant. …

The utmost extent to which the court of chancery has ever gone in restraining any publication by injunction, has been upon the principle of protecting the rights of property. …

But it may, perhaps, be doubted whether his lordship in that case did not, to some extent, endanger the freedom of the press by assuming jurisdiction of the case as a matter of property merely, when in fact the object of the complainant’s bill was not to prevent the publication of her letters on account of any supposed interest she had in them as literary property, but to restrain the publication of a private correspondence, as a matter of feeling only. His decision in that case has, however, as I see, received the unqualified approbation of the learned American commentator on equity jurisprudence. 11Brandreth v. Lance, 8 Paige Ch. 24, 26 (N.Y. Ch. 1839).

The court also notes in a footnote, “There is, perhaps, but one instance in the books, of any judge having maintained the existence of a power in the court of chancery of restraining publications on any other ground, but that of property and copyright” (Emphasis added).

Liberty of the Press does not Limit Copyright Injunctions

The idea that copyright is a property right and injunctions to protect property rights do not infringe free speech remained throughout the 19th century and into the 20th. The Columbia Law Review wrote in 1913:

This immunity from an injunction, while applicable to libels, is not similarly applicable to other forms of injurious publications where the historical requirement of a jury trial is not so pressing. Accordingly, where the act of publication results in intimidation and coercion it is treated as an ordinary crime, and the liberty of the press does not then limit the jurisdiction of equity to protect property. Furthermore, according to the prevailing view, it seems that a publication, no matter how innocent in itself, may be enjoined if it is made in pursuance of a scheme which has an enjoinable element. Thus, although the courts are at variance as to whether an injunction may issue against a boycott, they are agreed that wherever such is the case, publications in aid thereof, even if libels, cannot claim the protection of the guaranty. In establishing this doctrine they assert that the right to engage in a lawful occupation is not less essential than that of free speech. In order, therefore, to obtain the greatest possible freedom of action and speech equally for all, these conflicting constitutional rights must be exercised in accordance with the maxim, Sic utere tuo ut alienum non laedas. Certainly, the press should not be employed unjustifiably to ruin another’s occupation, and where such ruin is imminent the injunction, though a dangerous weapon, becomes a proper one [Emphasis added]. 12Freedom of the Press and the Injunction, Columbia Law Review, Vol. 13, No. 8, pp. 732-734 (Dec. 1913); See also Constitutional Protection of the Right of Freedom of Speech and of the Press, Columbia Law Review, Vol. 17, No. 7, pp. 622-624 (Nov. 1917), “In general, so highly has freedom of speech and of the press been held that, regardless of subsequent punishment, no censorship before publication has been tolerated, and, in consequence, to this day, courts will neither enjoin publications nor allow interference with them, except in the special case where written utterances are a part of a conspiracy to injure property [Emphasis added].” The footnote following this text reads, “When the publication was a petition repudiated by its signers, an injunction was granted on the basis of property right in the signature. Similarly, the infringement of a copyright has been enjoined”; The Americana: A universal reference library, comprising the arts and sciences, literature, history, biography, geography, commerce, etc., of the world, Volume 12, “Press, Freedom of the”, George Edwin Rines editor (1908): “Such legal checks [on the liberty of the press] as remain are merely intended to prevent outrages of religion or decency, to protect subjects from defamation, and to conserve the copyright of authors.”

And in 1971, Justice White of the Supreme Court itself weighed in, noting that “The Congress has authorized a strain of prior restraints against private parties in certain instances … Article I, § 8, of the Constitution authorizes Congress to secure the “exclusive right” of authors to their writings, and no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another.” 13New York Times v. U.S., 403 US 713, J. White, concurrence, n.1 (1971).

Today, preliminary injunctions are common in copyright cases, and seizures of infringing goods are common, both through courts and administrative agencies. At the same time, while defendants have increasingly raised First Amendment defenses in the past 40 years, those defenses have almost without exception been unsuccessful. 14I provided examples in previous posts, including ICE Seizures Criticism: Magic Words, Responding to Sellars: Copyright and Content-based Regulations, and Rojadirecta seeks refuge in First Amendment.

Call it what you will — a permissible prior restraint, a First Amendment exception, or a recognition of competing liberty interests — there is an unbroken historical practice of providing remedies for copyright infringement that would constitutionally fail in other areas of the law. This practice is premised in part on the view that copyright is a property right, and freedom of expression does not shield a defendant from invasions of property rights. As seen above, this premise appears to be established by the time of Blackstone’s Commentaries and has been alluded to several times since then.

Unbroken historical practice is obviously not ipse dixit proof of the constitutional firmity of a practice. But the development of the historical practice does increase our understanding of these issues today. Also, as mentioned earlier, the historical record reveals other reasons why the conflict that critics see between free speech and copyright has not been embraced by courts, reasons that I hope to write about in future posts.

References

References
↑1 More detail on the history of copyright and First Amendment scholarship at my post, Copyright and Censorship.
↑2 Freedom of the Press and the Injunction, Columbia Law Review, Vol. 13, No. 8, pp. 732-734 (Dec. 1913).
↑3 See, for example, Edward Lee, Guns and Speech Technologies: How the Right to Bear Arms Affects Copyright Regulations of Speech Technologies (2008) — and I’m always interested in learning about other examples.
↑4 Eldred v. Ashcroft, 537 US 186, 221 (2003).
↑5 See, for example, William Patry, Does it matter if copyright is property? Patry Copyright Blog, June 20, 2006, “What those who seek to have copyright classified as property is clear enough though: Blackstonian sole dominion, justified by the very classification of property … But what if copyright is just a tort, as indeed courts refer to it as. Might that not lead to consideration of things in a different light, one that involves more of the balancing of interests one typically sees, say in, negligence actions, a Coase Theorem of copyright?”;  Siva Vaidhyanathan, Copyright as Cudgel, Chronicle of Higher Education, Aug. 2, 2002. “We make a grave mistake when we choose to engage in discussions of copyright in terms of ‘property.’ Copyright is not about ‘property’ as commonly understood. It is a specific state-granted monopoly issued for particular policy reasons.”
↑6 James Madison, Property.
↑7 Is Copyright Property? 42 San Diego Law Review 29, 41 (2005).
↑8 “Whereas the improvement of knowledge, the progress of civilization, the publick weal of the Commonwealth, and the advancement of human happiness, greatly depend on the efforts of learned and ingenious persons in the various arts and sciencs: As the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves, and as such security is one of the natural rights of all men, there being no property more peculiarly man’s own than that which is produced by the labour of his mind.” Massachusetts Copyright Statute (1783), New Hampshire Copyright Statute (1783), Rhode Island Copyright Statute (1783).

“An act for securing to the authors of literary works an exclusive property therein for a limited time.” Virginia Copyright Statute (1785) (title).

“An Act for securing Literary Property: Whereas nothing is more strictly a man’s own than the fruit of his study, and it is proper that men should be encouraged to pursue useful knowledge by the hope of reward; and as the security of literary property must greatly tend to encourage genius, to promote useful discoveries and to the general extension of art and commerce.” North Carolina Copyright Statute (1785).

↑9 Green v. Biddle, 21 US 1, 57; See also Wheaton v. Peters, 33 US 591 (1834), discussing whether “literary property” is perpetual under copyright statute; Stephens v. Cady, 55 US 528, 531 (1853), speaking of the “property in the copy-right”; Canal Co. v. Clark, 80 US 311, 322 (1872), noting the “property” that exists “in copyrights”; Baker v. Selden, 101 US 99, 102 (1880), describing copyright as “exclusive property”; Holmes v. Hurst, 174 US 82, 86 (1899), explaining the nature of the “property” protected by copyright; Bobbs-Merrill v. Straus, 210 US 339, 346 (1908), referring to “copyright property”; Fox Film Corp. v. Doyal, 286 US 123, 127 (1932), “The production to which the protection of copyright may be accorded is the property of the author and not of the United States”; Dowling v. United States, 473 US 207, 217 (1985), exploring the “property rights of a copyright holder”; Stewart v. Abend, 495 US 207, 223 (1990), “the aspects of a derivative work added by the derivative author are that author’s property”.
↑10 Eugene Volokh, Flag Burning and Free Speech, Wall Street Journal, July 3, 2009.
↑11 Brandreth v. Lance, 8 Paige Ch. 24, 26 (N.Y. Ch. 1839).
↑12 Freedom of the Press and the Injunction, Columbia Law Review, Vol. 13, No. 8, pp. 732-734 (Dec. 1913); See also Constitutional Protection of the Right of Freedom of Speech and of the Press, Columbia Law Review, Vol. 17, No. 7, pp. 622-624 (Nov. 1917), “In general, so highly has freedom of speech and of the press been held that, regardless of subsequent punishment, no censorship before publication has been tolerated, and, in consequence, to this day, courts will neither enjoin publications nor allow interference with them, except in the special case where written utterances are a part of a conspiracy to injure property [Emphasis added].” The footnote following this text reads, “When the publication was a petition repudiated by its signers, an injunction was granted on the basis of property right in the signature. Similarly, the infringement of a copyright has been enjoined”; The Americana: A universal reference library, comprising the arts and sciences, literature, history, biography, geography, commerce, etc., of the world, Volume 12, “Press, Freedom of the”, George Edwin Rines editor (1908): “Such legal checks [on the liberty of the press] as remain are merely intended to prevent outrages of religion or decency, to protect subjects from defamation, and to conserve the copyright of authors.”
↑13 New York Times v. U.S., 403 US 713, J. White, concurrence, n.1 (1971).
↑14 I provided examples in previous posts, including ICE Seizures Criticism: Magic Words, Responding to Sellars: Copyright and Content-based Regulations, and Rojadirecta seeks refuge in First Amendment.

Who Cares What Jefferson Thought About Copyright?

By , October 17, 2011.

A letter written by Thomas Jefferson to Isaac McPherson in 1813 has become canonized into the copyright skepticism movement. You’re probably familiar with the letter, which reads in part:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

This letter has become, in the words of James Boyle, “very famous in the world of the digerati.” 1Boyle, The Public Domain: Enclosing the Commons of the Mind, pg 18 (2008). Just this past week, law professor David Post referred to this letter in a talk on Jefferson, copyright, and the net, calling it “one of the foundational documents for intellectual property law in the US.”

It’s easy to see why this particular letter is valued so much by copyright’s critics — it expresses sentiments they agree with and it is written by a Founding Father, giving it the weight of authority. One gets the sense from reading those that quote this letter that it presents a sort of idealized version of copyright, one that current copyright law has long since forgotten. 2One egregiously revisionist version of this sentiment can be seen at TechDirt: On the Constitutional Reasons Behind Copyright and Patents.

Despite the sacrosanct nature that this letter has been given, there are some serious problems with it being considered a foundational document in copyright law.

He was talking about something else

For starters, Jefferson was expressly talking about patents, not copyright. It’s odd that the letter is used at all when discussing copyright because of this fact, but it is. 3Along with the examples above, see John Perry Barlow, The Economy of Ideas, Wired (March 1994); Russell McOrmond, Jefferson Debate: A Godwin’s law for copyright discussions? Digital Copyright Canada (Dec. 17, 2005); Nadine Farid, Not in my Library: Eldred v. Ashcroft and the Demise of the Public Domain, 5 Tulane Journal of Technology and Intellectual Property 1, 4-5 (2003); Parker Higgins, A Response to the Harvard Crimson’s “A Sensible Compromise”, freeculture.org (Dec. 23, 2010); Stealing Ideas, Structural Knowledge (July 19, 2011). Though the two share similarities — for example, Congress’s power to make laws concerning both stems from the same Constitutional clause, and Congressional practice concerning one can inform the other 4Eldred v. Ashcroft, 537 US 186, 201 (2003). — the differences between them are more relevant here.

On the one hand, it can be said that a patent protects ideas embodied in a new invention or process. Though a patent can’t protect an abstract idea by itself, nor take a known idea out of the public domain, 5Aronson v. Quick Point Pencil, 440 US 257, 263 (1979). it does foreclose the use of the ideas described in the invention’s claims. 6Diamond v. Diehr, 450 US 175, 187 (1981). This tension between patent protection and the free flow of ideas is inherent in patent law. Jefferson’s description of the nature of ideas in the letter reflects his concerns over this tension, especially in light of the argument that inventors have a natural right to their inventions that Jefferson refers to at the beginning of the letter.

Copyright, on the other hand, protects expression, not the underlying facts or ideas embodied in that expression. 7Harper & Row v. Nation Enterprises, 471 US 539, 544 (1985). Copyright protection and the free flow of ideas are fully congruent — and, in fact, by providing an incentive to disseminate expression of ideas, copyright protection encourages the contribution of new ideas into the public domain.

So even if we ignore that Jefferson was specifically talking about patents in this letter, his points have little relevance to copyright.

Jefferson and patent law

Returning back to the subject of patents, it is undeniable that Jefferson in general and this letter in particular has influenced the development of the law. Thomas Jefferson was not only an inventor, but an administrator of patent law under the 1790 Patent Act and author of the 1793 Patent Act. The Supreme Court has relied on his views, including those he expressed to McPherson, as an aid to interpreting patent law on several occassions. 8See, for example, Graham v. John Deere, 383 US 1, 8-9 (1966).

The use of Jefferson’s views on patent law, however, has been criticized.

On a number of occasions, Justices of the Supreme Court have relied on the views of Thomas Jefferson as a means of explicating their interpretations of both the patent clause of the Constitution and various patent statutes. In so doing, these Justices have created a Jeffersonian mythology that, in a number of respects, is significantly at odds with the historical record. The Court has, in particular, overrated and over stressed Jefferson’s ostensible influence on the early development and interpretation of the patent law through a selective use of the historical record. 9Edward C. Walterscheid, The Use and Abuse of History: The Supreme Court’s Interpretation of Thomas Jefferson’s Influence on the Patent Law, 39 Journal of Law and Technology 195 (1999).

In Who Cares What Thomas Jefferson Thought About Patents? Adam Mossoff also questions the influence of Jefferson on patent law:

In 1966, the Supreme Court discovered that Thomas Jefferson was the founder of American patent law. In Graham v. John Deere Co., the Court first invoked Jefferson’s words that the “embarrassment of an exclusive patent” was a special legal privilege justified only because these “monopolies of invention” served the “benefit of society.” Jefferson the next two decades, leading patent law scholars to remark recently that Jefferson’s “views . . . have proven influential, especially in the Supreme Court.” Following the Court’s practice, intellectual property scholars, especially those engaged in the increasingly rancorous debate over rights in digital content on the Internet, invoke Jefferson’s words as an unassailable historical axiom.

In short, says Mossoff, “Jefferson’s hegemony over the history of American patent law is as indisputable as it is wrong.”

Jefferson and copyright law

While the case for Jefferson’s influence on patent law is subject to debate, the case for his authority on informing copyright law is decidely weak.

Unlike patent law, Jefferson had little to do with copyright law during his lifetime. Copyright protection in the United States was first championed by a group of authors, including Noah Webster and Joel Barlow. 10Thomas Nachbar, Constructing Copyright’s Mythology, 6 Green Bag 2D 37, 37-38 (2002). In response, a committee in the Continental Congress — consisting of James Madison, Hugh Williamson, and Ralph Izard — drafted a resolution that recommended the states pass their own copyright laws. 1124 Journals of the Continental Congress 326-27 (May 2, 1783). Twelve of the thirteen states had passed such legislation by 1786. When the Constitution was drafted, it was proposals by Madison and Charles Pinckney that eventually became the Copyright Clause. 12Dotan Oliar, The (Constitutional) Convention on IP: A New Reading, 57 UCLA Law Review 421 (2009). The Copyright Act of 1790, the first law made pursuant to Congress’s copyright authority, reflected little independent thought on intellectual property — rather, it was England’s 1710 Statute of Anne “phrased in somewhat more modern language and featuring a few omissions, additions, and modifications.” 13Oren Bracha, The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant, 25 Berkeley Technology Law Journal 1427, 1453 (2010).

Notably absent from this discussion of the early days of US copyright law is any mention of Thomas Jefferson. Jefferson was a minister to France when the first state copyright acts were passed and was not even in the US when the Constitution was drafted. As law professor Justin Hughes points out, “this, by itself, should largely curtail the use of Jefferson as ‘a reliable source of the meaning of Article I of the Constitution.'” 14Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 Southern California Law Review 993, 1026 (2006).

While Jefferson wrote about copyright on occassion — he wrote about many subjects — his views on copyright have not been as influential in courts as his views on patent. Justice Breyer makes brief mention to several letters written by Jefferson in his dissent in Eldred v. Ashcroft (though not the McPherson letter); other than that, US courts have not inquired about Jefferson’s views on copyright.

So should we care what Thomas Jefferson thought about copyright law?

Sure, as long as his views are accorded the proper weight. History is important in copyright law — the Supreme Court’s recent oral arguments in Golan v. Holder dealt in part with the effect of the Copyright Act of 1790. But using history appropriately is about more than finding nice sounding quotes from important people. Given Jefferson’s virtually nonexistent role in influencing early US copyright law, his views should be given similar influence today.

Perhaps more importantly, we should be sure we understand what exactly his views were. There is no evidence that Jefferson had any sort of idealized notion of copyright that is inconsistent with modern copyright law; according to Hughes, “if we objectively survey all of Jefferson’s writings, we find that his views on what we now call intellectual property were, to be generous, ‘nuanced’ or perhaps ‘fluid.'”

In this regard, a letter written in 1813 about patents isn’t very helpful.

References

References
↑1 Boyle, The Public Domain: Enclosing the Commons of the Mind, pg 18 (2008).
↑2 One egregiously revisionist version of this sentiment can be seen at TechDirt: On the Constitutional Reasons Behind Copyright and Patents.
↑3 Along with the examples above, see John Perry Barlow, The Economy of Ideas, Wired (March 1994); Russell McOrmond, Jefferson Debate: A Godwin’s law for copyright discussions? Digital Copyright Canada (Dec. 17, 2005); Nadine Farid, Not in my Library: Eldred v. Ashcroft and the Demise of the Public Domain, 5 Tulane Journal of Technology and Intellectual Property 1, 4-5 (2003); Parker Higgins, A Response to the Harvard Crimson’s “A Sensible Compromise”, freeculture.org (Dec. 23, 2010); Stealing Ideas, Structural Knowledge (July 19, 2011).
↑4 Eldred v. Ashcroft, 537 US 186, 201 (2003).
↑5 Aronson v. Quick Point Pencil, 440 US 257, 263 (1979).
↑6 Diamond v. Diehr, 450 US 175, 187 (1981).
↑7 Harper & Row v. Nation Enterprises, 471 US 539, 544 (1985).
↑8 See, for example, Graham v. John Deere, 383 US 1, 8-9 (1966).
↑9 Edward C. Walterscheid, The Use and Abuse of History: The Supreme Court’s Interpretation of Thomas Jefferson’s Influence on the Patent Law, 39 Journal of Law and Technology 195 (1999).
↑10 Thomas Nachbar, Constructing Copyright’s Mythology, 6 Green Bag 2D 37, 37-38 (2002).
↑11 24 Journals of the Continental Congress 326-27 (May 2, 1783).
↑12 Dotan Oliar, The (Constitutional) Convention on IP: A New Reading, 57 UCLA Law Review 421 (2009).
↑13 Oren Bracha, The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant, 25 Berkeley Technology Law Journal 1427, 1453 (2010).
↑14 Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 Southern California Law Review 993, 1026 (2006).

Copyright and Derivative Arguments

By , October 11, 2011.

It has been established at common law and recognized by our courts that “rules attending property must keep pace with its increase and improvements and must be adapted to every case”, and copyright protection must correspondingly extend.

Though these words were spoken over a century ago, they remain just as relevant today, especially as the US House is expected to introduce a version of the PROTECT IP Act within the next couple of weeks. The bill, which adds narrow, reasonable remedies designed to reduce the financial incentive of websites whose sole purpose is to infringe on the intellectual property of creators and businesses, seeks to keep pace with the increase and improvements of technology.

Opponents of the legislation will no doubt continue to ramp up their criticism of the bill — as a “threat to innovation” or “censorship“ — as it makes it way through Congress. Some will suggest that creators are better off if copyright law remains the same, that they are better off figuring out on their own how to capture some of the tremendous value their work creates for others.

Yet, somewhat ironically, for all the talk of “innovation”, these arguments remain strikingly familiar to ones raised time and again for at least a hundred years.

Copyright and New Technologies

In 1909, Congress passed a major revision of the Copyright Act. Among its provisions was the extension of copyright control to mechanical reproductions. Prior to then, the reproduction of a musical composition onto a mechanical device that could automatically play the song back — a piano roll or a phonograph, for example — was not considered a reproduction under copyright law. 1White-Smith Music Publishing Co. v. Apollo Co., 209 US 1 (1908). Note for later that the attorney for the plaintiffs was Nathan Burkan, the attorneys for the defendants were Albert H. Walker and George W. Pound.

Debate over whether copyright law should encompass mechanical reproduction was contentious. On one side were manufacturers of automatic musical devices, who pushed Congress not to extend copyright law in this area. On the other were musicians and publishers. In December of 1906, the Congressional Committees on Patents heard from both sides.

Nathan Burkan, who was quoted at the beginning of this post, represented the Music Publishers’ Association. At one point, he was responding to the argument that the owners of mechanical music players had “vested rights” to use their technology to reproduce existing songs. This argument is a forerunner of the argument heard today that copyright holders are opposed to innovation and new technology.

You hear multiple variations on this argument, which basically goes like this: Since the law extends to a new technology, or a new use of existing technology, then it is a wholesale attack on the technology itself. 2“The entertainment industry hates new technologies,” Andrew Kantor, It’s the same old song from a short-sighted industry, USA Today, May 26, 2006; “In 1984, the Supreme Court spared Hollywood from its own short-sighted desire to curtail innovation,” Fred von Lohmann, Betamax was a steppingstone, EFF, 2004; “It’s almost a truism in the tech world that copyright owners reflexively oppose new inventions that do (or might) disrupt existing business models,” Nate Anderson, 100 years of Big Content fearing technology — in its own words, Ars Technica, Oct. 11, 2009; “Any time a new service comes along that helps drag the content industries into the present, the industry’s [sic] hit back by trying to kill off or cripple the golden goose,” Mike Masnick, Why does the entertainment industry seek to kill any innovation that’s helping it adapt? TechDirt, April 15, 2011.

But as Burkan points out, there is a difference between technology and the use of technology. Concern about the latter is not an attack on the former. And as Burkan progresses, he notes what is as true then as it is now: copyright and technology are not two competing forces but rather depend on each other. Weakening copyright law to accommodate the interest of tech manufacturers benefits nobody in the long run.

The letters-patent granted to the inventors of these perforated rolls and phonograph records, and improvements thereon, secure to them the right to manufacture contrivances adapted to reproduce sound. That is the extent of the right. It does not carry with it the further right to appropriate the copyrighted musical composition of any composer. There is nothing in the letters patent or in the patent laws or in the Constitution from which these rights emanate that can be construed as granting to the owner of a patent the right to deprive any man of his property or to exploit the intellectual productions of that man without fair compensation. Nor is there anything in the section which permits the composer of a musical composition, copyrighted after the act shall have gone into effect, to appropriate without compensation any device protected by patent. The composer would have no right to combine his composition with any patented invention and put the same on the market without the consent of the owner of the patent. Then, why should the owner of a patent have the right to use a copyrighted composition, without the owner’s consent, in connection with his invention?

… The contention that these patent owners have vested rights in the offspring of the brain of American composers is in violation of every principle of ethics, equity, and natural justice. They would not attempt to urge the contention that if in order to make their patents profitable it was necessary to combine therewith ordinary personal property, they would thereby acquire any rights in any such personal property. The great principle on which the author’s right rests is that it is the fruit or product of his own labor, and that the labor of the faculties of the mind establishes a right of property as sacred as that created by the faculties of the body. A literary man is as much entitled to the product of his labor as any other member of society, and the right to literary property is just as sacred as any other property and is entitled to the same protection that the law throws around the possession and enjoyment of other kinds of property.

This industry devoted to the manufacture of perforated rolls and phonograph records is essentially parasitic. It thrives by exploiting the productions of American composers, their names, and reputations. It exercises no productive effort in the art which it exploits. It does not stimulate original work. It waits until the composer and publisher have created and met a popular demand for a piece of music, through the expenditure of money, time, and labor; then it swoops down upon and appropriates that composition for use upon its machines, to its own unjust enrichment. It acquired great wealth, influence, and power by sponging upon the toil, the work, the talent, and genius of American composers.

And carried away by the success of this iniquity, these manufacturers have become imbued with its righteousness to such a degree that they regard the exploitation of American genius and the appropriation of its creations to their own enrichment as their vested right, and this bill which is to secure to the American composer no more than his just due—the full fruits of his labor—as an assault upon an inviolable right.

… But their selfishness is suicidal. It is a fact shown by a comparison of the industries that with the increase of the sale of their mechanical devices the sale of sheet music decreases. The hope of reward, this great incentive to original work, is thus taken away from the composers by the policy of these manufacturers, and the production of original compositions is discouraged. The inevitable result will be that the composers will refuse to give original compositions to the public for the sake of a copyright protection which will no longer protect. Then will the parasite that kills itself be killed. 3Pp. 222-23.

Piracy is Promotion?

Earlier in the debates, opponents of the mechanical reproduction provisions raised another argument: copyright owners should be thanking them because piano rolls and phonographs are great advertising for sheet music sales. Sound familiar? 4“An artist’s enemy is obscurity, not piracy,” Cory Doctorow, Scourge of the Corporate Pirates, Brian Bethune, Macleans, April 23, 2008; “The sad fact is that The Lost Country has become a pretty obscure work … Digital access to low-use titles through our catalogs will encourage users to discover resources, for study and for entertainment, that they might not have bothered with before,” Keven Smith, An Open Letter to J.R. Salamanca, Scholarly Communications @ Duke, Sept. 16, 2011; “Companies that are cracking down on “piracy” without realizing they may be hurting free promotional activity are doing damage to their own business,” Mike Masnick, Is There a Difference Between Piracy and Promotion? TechDirt, Aug. 10, 2004; “For example, due to file-sharing, people discover a broader range of films than before but cinemas have done nothing to work with this insight,” Magnus Eriksson, Is Online Piracy a Good Thing? CNN, April 17, 2009.

Below is an excerpt from this portion of the hearings. Speaking first is George W. Pound, representing the De Kleist Musical Instrument Manufacturing Company and Rudolph Wurlitzer Company. He had just finished recounting letters he had received from musicians thanking him for recording their songs. Also speaking is Albert H. Walker, who appeared on behalf of “many inventors and of a few manufacturers,” especially the Auto-Music Perforating Company. Finally, John Philip Sousa, when he finally gets the chance to speak, rebuts Pound and Walker’s arguments.

Mr. Pound. We contend, sir, that that position is not well taken, that as a matter of fact every composer in the land and every music publishing house in the land is glad to get the advertisement following from the mechanical reproduction of their music. It is regarded in the trade as the best assistant to the sales of their music of any form of advertising.

… Mr. Sousa. Can I say a word here?

Mr. Pound. It will have to be very brief, and this will be the last interruption that I shall permit.

Mr. Sousa. Mr. Chairman, I can not understand why the passage of this law will interfere with these gentlemen who want to go to the talking machines. If 99 per cent of the composers are willing to give them their product, all right. I can not understand why I should be robbed in that way. It will not hurt you, and if 99 per cent of them give the music to these people, all they will have to do is to pay me. I can not understand how this law will interfere with them, and I am not standing for any publisher. I am standing for John Philip Sousa, and America.

Mr. Walker. The interest the 99 per cent have in the defeat of the bill resides in the fact that they will sell more music if we continue to advertise their business than they will if the Aeolian Company drives us out of business.

Mr. Sousa. I prefer to be the judge of that myself. I want to select the means of advertising my music. 5Pp. 310-312.

References

References
↑1 White-Smith Music Publishing Co. v. Apollo Co., 209 US 1 (1908). Note for later that the attorney for the plaintiffs was Nathan Burkan, the attorneys for the defendants were Albert H. Walker and George W. Pound.
↑2 “The entertainment industry hates new technologies,” Andrew Kantor, It’s the same old song from a short-sighted industry, USA Today, May 26, 2006; “In 1984, the Supreme Court spared Hollywood from its own short-sighted desire to curtail innovation,” Fred von Lohmann, Betamax was a steppingstone, EFF, 2004; “It’s almost a truism in the tech world that copyright owners reflexively oppose new inventions that do (or might) disrupt existing business models,” Nate Anderson, 100 years of Big Content fearing technology — in its own words, Ars Technica, Oct. 11, 2009; “Any time a new service comes along that helps drag the content industries into the present, the industry’s [sic] hit back by trying to kill off or cripple the golden goose,” Mike Masnick, Why does the entertainment industry seek to kill any innovation that’s helping it adapt? TechDirt, April 15, 2011.
↑3 Pp. 222-23.
↑4 “An artist’s enemy is obscurity, not piracy,” Cory Doctorow, Scourge of the Corporate Pirates, Brian Bethune, Macleans, April 23, 2008; “The sad fact is that The Lost Country has become a pretty obscure work … Digital access to low-use titles through our catalogs will encourage users to discover resources, for study and for entertainment, that they might not have bothered with before,” Keven Smith, An Open Letter to J.R. Salamanca, Scholarly Communications @ Duke, Sept. 16, 2011; “Companies that are cracking down on “piracy” without realizing they may be hurting free promotional activity are doing damage to their own business,” Mike Masnick, Is There a Difference Between Piracy and Promotion? TechDirt, Aug. 10, 2004; “For example, due to file-sharing, people discover a broader range of films than before but cinemas have done nothing to work with this insight,” Magnus Eriksson, Is Online Piracy a Good Thing? CNN, April 17, 2009.
↑5 Pp. 310-312.

The Modern Contrivance of Copyright (1875)

By , August 25, 2011.

The following is from the beginning of Appleton Morgan’s 1875 treatise, “Law of Literature,” which has been said to have “codified the law of literary property in the United States.” 1The National Cyclopedia of American Biography, “Morgan, Appleton“, Volume 9, pg 452, James T. White & Co. (New York, 1899).

Before the invention of the art of printing, we have seen that literary compositions were published, either by delivery, by word of mouth, or by a laborious and careful copying of the manuscript upon parchment, which was then wound upon rollers into a volume or book. Still later, writings were published by being inscribed upon parchment, and scattered broadcast along the highways, or over the fields. Says the outlaw’s song of Trail le Baston:

Escrit estoit en parchemyn pur mont remember
Egitté en haut chemyn qe urn le dust trover. 2“It was written on parchment to be well remembered / And cast into the highway, that some one should find it.”

This method of publication seems to have been employed until quite the sixteenth century. We find mention of “a libel or book entitled ‘The Supplication of Beggars/ thrown and scattered at the procession in Westminster, on Candlemas day (2 February, 1562), before King Henry the Eighth, “for him to read and peruse”; and of Wolsey, complaining to that king, “of divers seditious persons having scattered abroad books.” So, too, Burdett was tried “for conspiring to kill the king and prince by casting their nativities, fortelling the speedie death of both, and scattering letters containing the prophecy among the people.” Copyright is a modern contrivance by which an author may, if he will, still scatter his productions to the four winds, and yet retain, if he will, the exclusive control over them, and over their further multiplication. It is a provision by which the contents of the scattered page are still his (disconnected from any possession in plate, or type, or paper, or in any other physical existence), constituting a property in which he can traffic, and which he can buy and sell and bestow.

The privilege of an author to the exclusive sale of his works for a limited number of years, although practically in the nature of a monopoly, is not a monopoly in the odious meaning of the term.

A monopoly proper is a right given to one individual to produce or traffic in a commodity which others are fully as able to produce or traffic in as he, if permitted to do so. A monopoly is a rule against competition. But there can be no competition in the productions of a man’s own brain. A man has, by natural law, a right to the exclusive power of first disposing of his own productions or manufactures; and the pursuit and enjoyment of that exclusive right can never be a monopoly. The author only has given him, by law, what in morality, equity, and good conscience, he had before. Or, to speak more accurately, the law gives him a method of asserting and protecting his right. Statutes of copyright only shift the burden of proof in favor of the author.

That copyright laws are beneficial to the public, as well as to the author, cannot be questioned. Rich and vast as are our stores of literature, how much richer and vaster might they have been, if the first English copyright act had been the act of Elizabeth instead of the act of Anne; or if the days of Chaucer, no less than the days of Dryden, had been enlightened by such protective legislation!

It is not improbable that we owe to the fact, that, in his day, a manuscript or published work, was practically without protection and not to be intrusted beyond the writer’s hand, that no authentic and authoritative text of Shakespeare exists, and nothing but inaccurate, interpolated, and expurgated texts of Fletcher, Beaumont, Webster, and a score of other contemporary writers. So long as a service to literature is a service to the people, copyright laws cannot be classed as mere individual monopolies. The only property which is reserved to the author, and which the law gives him, is the exclusive right to multiply copies of that particular combination of character which exhibits, to the eye of another, the ideas he intends to convey.

The Law of Literature, by James Appleton Morgan. Vol. II, James Cockcroft & Co. (New York, 1875).

References

References
↑1 The National Cyclopedia of American Biography, “Morgan, Appleton“, Volume 9, pg 452, James T. White & Co. (New York, 1899).
↑2 “It was written on parchment to be well remembered / And cast into the highway, that some one should find it.”

Sousa on Copyright, 1905

By , August 16, 2011.

The famed American composer colorfully mocks the idea of ascribing altruistic motives to the music pirate:

Sir, — With an avidity worthy the cause, I have read during my sojourn in these tight little islands everything that has come my way which has borne on the subject of music piracy.

Because of the laxity of your laws, and because of the perseverance of your music pirates, my royalties have gone a-glimmering. To use an anatomical expression current in my own country, I have been “getting it plump in the jugular.”

One or two of the arguments I have noted, which were in opposition to the publisher and composer, have not struck me as hilariously humorous, or even as faintly facetious.

To elucidate — I read in your journal some days ago, a communication in which the writer places the blame for the deplorable condition of the music trade here on the publisher, and points with argumentative finger to the fact that if the publisher had heeded the cry of the masses — whoever that nebulous body may be — and had sold his wares for less money, the music pirate would never have budded into existence. Inter alia, it would appear that the music pirate was called into the arena of activity to fill a long-felt want — to supply music at a cheaper price than the one at which the publisher cared to sell it — whether he could afford to or not.

It would appear under those conditions that the music pirate had a philanthropic mission. This mysterious and mercenary Messiah, noticing the’ dire distress of the tune-starved masses — whoever they may be — said, “I will save them. I will fill their melodic ‘little Marys’ with music at 2d. a meal. I will gorge them with gavottes, build them up with ballads, and make muscle with marches. They shall become comely with comedy conceits, and radiantly rosy with ragtime rondos — and all at 2d. a throw.”

And this beneficent pirate has waxed fat and saucy as he has hawked in the highways and byways spurious editions of him who is the favored of Melpomene and the boon companion of Orpheus. And I beg to ask, in words tinged with doubt and despair, where does the favored of Melpomene and the boon companion of Orpheus come in? The royalties of the “f. of M.,” and the “b.c. of O.” are like angels’ visits — few and far between.

Shall the sunlight depart from the soul of the sweet singer of melody? Shall the fount of the muse dry up, as it were? Is there no balm in Gilead? Is there no surcease from sorrow for royalties that never materialize? Behold, O star-eyed Britannia, a suppliant at the bar of public opinion asking for justice, for your own and for your friends’ own.

John Philip Sousa, letter to the editor of the “Daily Mail”, 1905.

« Older articles
Newer articles »