1. The common gift from god:

The oldest model, I suspect, is one that takes the fruits of human creativity to be gifts from the gods, the muses, or the ancient ones and, as a corollary, takes it that such works therefore should not be bought and sold (nor can they be exactly forged, plagiarized, or stolen). Such was the traditional understanding for medieval Christians, their dictum being Scientia Donum Dei Est, Unde Vendi Non Potest–“Knowledge is a gift from God, consequently it cannot be sold.” To sell knowledge was to traffic in the sacred and thus to engage in the sin of simony. Reformation Protestants were particularly sensitive to simony, having charged the Catholic church with the buying and selling of ecclesiastical preferments and benefices. Martin Luther said of his own created works, “Freely have I received, freely I have given, and I want nothing in return.”

I suppose that in the present moment if you were a Lutheran choir director who download hymns for your congregation and the music industry sued, saying that the work had been copyrighted and that “theft was theft,” you ought to be able to shift the frame by replying: “simony is simony.” I doubt that you’d find much support in the American legal tradition, however, even in its early years. Reformation ideas about knowledge had been considerably altered by the time the founders framed their own.

2. Ownership of the Landed Estate:

The second frame does not necessarily conflict with the religious background of the “common stock” [or “free as the air”] frame, but its point of departure is decidedly of this world, more focused on the problem of freeing individual talent from patronage and also, therefore, more at ease withcommerce. Here the dominant metaphor was the landed estate, an image that had the advantage, for partisans of strong intellectual property rights, of borrowing from people’s assumptions about real estate. “We conceive [that] this property is the same with that of Houses and other Estates,” declared London booksellers when first threatened with a limit to the term of their copyrights. They beg the question, of course, of what exactly we assume such property entails (there are many kinds of estates, as we shall see in the next section), but as with most compelling frames, the intuitive response is what matters, not complexities hidden beneath the surface. Shouldn’t all property, even a bookseller’s copyright, be “safe as houses”?

3. Monopoly:

Monopoly had a marked historical meaning for early theorists of intellectual property, seventeenth-century Puritans having begun their argument with royal power over exactly this issue. As the historian and statesman Thomas Babington Macaulay explains in his History of England, Puritans in the House of Commons long felt that Queen Elizabeth had encroached upon the House’s authority to manage trade having, in particular, taken it “upon herself to grant patents of monopoly by scores.”  Macaulay lists iron, coal, oil, vinegar, saltpetre, lead, starch, yarn, skins, leather, and glass, saying that these “could be bought only at exorbitant prices.”

Macaulay doesn’t list printing in his History, but it was the case that in the late sixteenth century the Queen’s printer, Christopher Barker, held monopoly rights to the Bible, the Book of Common Prayer, and all statutes, proclamations, and other official documents. And Macaulay does mention monopoly in his 1841 Parliamentary speech in opposition to a proposed extension to the term of copyright. “Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly,” he said, asking rhetorically if the Parliament wished to reinstate “the East India Company’s monopoly of tea, or … Lord Essex’s monopoly of sweet wines”?

The understanding of copyright as monopoly was not Macaulay’s invention; it was almost as old as copyright itself. In 1694 John Locke–a strong supporter of property rights in other respects–had objected to copyrights given by government license as a form of monopoly “injurious to learning.” Locke was partly concerned with religious liberty, the laws in question having been written to suppress books “offensive” to the Church of England, but mostly he was distressed that works by classic authors were not readily available to the public in well-made, cheap editions (he himself had tried to publish an edition of Aesop only to be blocked by a printer holding an exclusive right). “It is very absurd and ridiculous,” he wrote to a friend in Parliament, “that any one now living should pretend to have a propriety in … writings of authors who lived before printing was known or used in Europe.” Regarding authors yet living, Locke thought they should have control of their own work, but for a limited term only. As with Macaulay, his framing issue was monopoly privilege, not property rights.

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A photo I took in the halls of UMass Boston was featured in a Wired Magazine (well, on the website) in “Universal ‘Death Stench’ Repels Bugs of All Types”.

Image: Flickr/bensheldon. Note: This photo was chosen from a disturbingly large volume of dead cockroach images on Flickr.

There is a tiny bit of controversy though: I was made aware the photo was being used when a good samaritan emailed the author saying Wired had not respected the Creative Commons Attribution–Non-Commercial

–Share-Alike license under which the image had been posted to Flickr. We’re currently awaiting a response from the article’s editor.

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Ludvig Werner, the boss of IFPI’s local Swedish chapter, had a somewhat different perspective: The Pirate Bay is about keeping money out of creators’ hands and putting it into Pirate Bay pockets. “Copyright exists to ensure that everyone in the creative world—from the artist to the record label, from the independent film producer to the TV programme maker—can choose how their creations are distributed and get fairly rewarded for their work,” he said in a statement. [from the trial against the Pirate Bay in Sweden]

And this is from the United States’ Constitution—though obviously (I hope) not in force in Sweden:

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

Not that I agree with the Pirate Bay’s methodologies, but as I’ve written before, this isn’t the first time that copyright rhetoric has been manipulated… all the way back to the 19th century.

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• Drop Zone trailer

I've an avid participant of Harvard Law School's Berkman Center's Tuesday Luncheon Series. On February 27, author Matthew Pearl gave a great talk on copyright in the nineteenth century; I have reordered and summarized the content, though you can listen to the full audio. Through analysis of the writings and motivations of numerous 19th century authors, publishers and tradesman, Matthew Pearl carried an interesting theme: the intellectual property rhetoric of pirates and thievery was pure artifice until the rhetoric itself was codified as law, or still in some cases, not.

The mid-ninteenth century was a heady time for American publishers and a frustrating one for authors. The United States, while having domestic copyright law protecting the literary rights of American authors, had no International Copyright provisions. The works of foreign authors--British especially, because they were English language--could be printed or altered without royalty or the permission of their writers. The works of Charles Dickens, or Anthony Trollope, could be freely printed in America, and they were. Publishing agents would eagerly wait at the docks of Boston for transatlantic clippers to arrive with the newest novels to then reprint. The publisher Harper & Brothers, today HarperCollins, was the most notorious and proud of their unapproved additions.

The free-spirited atmosphere created by a lack of international copyright affected both foreign and domestic authors. Foreign authors did not receive royalties on books printed in America; the content was also sometimes modified from the author's original text. Domestic books, by such authors as Mark Twain, Walt Whitman and James Fennimore Cooper, sold less because the prices were undercut by non-royalty paying foreign novels.

At this time the authors often banded together in copyright clubs or leagues to protest. James Russell Lowell, noted poet and president of American Copyright League penned this motto:

In vain we call old notions fudge,
And bend our conscience to our dealing;
The Ten Commandments will not budge,
And stealing will continue stealing.

This motto, in the same vein as many other pro-copyright writings, is interesting because of the themes it calls up. Notably, it evokes a traditionalist past implying that there was a time when literary property was respected. The motto also refers explicitly to stealing, yet at the time, there did not exist a legal framework of infringement. Indeed, courts at the time stated that there existed no common-law for the protection of literary works

In the same vein, Rudyard Kipling published the Rhyme of the Three Captains, a long and complicated poem literalizing the theft of one of his books by Harper. Kipling moralizes the episode with the serious line "Does he steel with tears when he buccaneers? For God then why does he steal?" One reviewer even goes so far as to call them "book-aneers".

Other works contained similar ideas of constant, instantaneous and expected crime. Edgar Allen Poe's Purloined Letter concerns a crime that is completely in public view. Charles Dicken's Martin Chuzzlewit is about the "false commerce" of America.

But authors, while protecting their writings, had a tightrope wire to walk with themes very American: democracy, class, culture and slavery.

Royalty-free novels made possible, for the first time, "railway station" editions that could cheaply purchased by the general public. In the past, only library quality editions could be purchased by those who could afford their high costs. Restoring high prices these could viewed as keeping knowledge or betterment from the masses. Additionally, the growth of the publishing industry was fueled by cheap foreign novels, and to be against them placed authors as elitists above the working class typesetters and bookbinders.

At this time there did not fully exist the concept of the sanctity of a creator's work. English books were often Americanized, removing British language or themes and replacing them with more American counterparts more easily understandable or acceptable to American palates. Twain's A Yankee in King Arthur's Court is the archetypal American meddling with high British romance: invading, changing and ultimately destroying it.

Disallowing the modification of works was even viewed as imposing a slavery of words. When Harriet Beecher Stowe went to court to prevent an unauthorized German translation of Uncle Tom's Cabin, she was named a hypocrite by some in calling for the emancipation of the negro yet shackling her novel.

Charles Dickens, on his two visits to America, was viewed with much animosity by the American public. On these visits he called for an international copyright but was derided as only seeking greater profits for himself.

Indeed, authors went to great lengths to not fall too heavily on either side. Walt Whitman's Leaves of Grass contains a very measured call for stronger protections. Mark Twain, in a confusing episode before the U.S. Senate, gave strange or contradictory answers. James Fennimore Cooper would outright lie when asked about having signed petitions.

Despite all of this, there was created by authors a wholly successful fictional narrative superimposed on an actual legal regime. Today's concepts---and laws---of copyright infringement, piracy, robbery and thievery are based upon these artificial metaphors and themes. At the time no laws existed to make the actions of publishers such as Harpers illegal, but rhetoric, poems and stories were created until a legal framework could codify them.

To learn from these episodes Matthew Pearl makes this important point:

It is easy for us to forget that at one point there existed the need to craft the rhetoric of "a shadow copyright regime".

Today, it's difficult for us to notice how we adjust the rhetoric, for better or worse, in the popular conceptions and legal framework of ownership and copyright protection. And when taking into account concepts like Fair Use, noticing that conceptions may be just rhetoric.

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