23 May 2006

Back to the Future

Four hundred years ago, almost precisely.

In the early part of the seventeenth century, a debate over ownership of written works raged in Parliament. (In fact, the debate had begun a decade earlier with Parliament's refusal to renew the statutory monopoly on printing enjoyed by the Company of Stationers.) Two incompatible paradigms struggled for supremacy. On the one hand, the monopolists and their allies pointed out that since they provided the financial capital invested in printed works—a not-inconsiderable sum relative to the general cost of living at the time—they should reap the benefits of their investment after paying off the author. That should include control over all manner of reproduction. In modern terms, the publisher should control the right to copy and sell the work. On the other hand, a puzzlingly diverse set of philosophers, scholars, and others—and, in fact, only a minority of then-contemporary authors—viewed the publishing transaction as more akin to the lease for a term of years or other limited tenancy than to the transfer and seisin of a fee simple. Although some (not all) of them acknowledged the investment by the printers, they held that the provider of the creative spark without which there would be no book at all should control the right to copy.

In the end, the second group "won" the battle, resulting in the Statute of Anne and, not quite two centuries after that, the IP Clause in the US Constitution. There have been many, many battles over the years since, such as the yet-unsettled battle over whether copyright is a natural right or a statutory right.1 Those battles continue today, as John Upchuckdike's screed at BEA (and its conflict with reality) more than demonstrates. And, of course, since reproduction of sound and of graphics became not just possible, but routine and assumed—I've got Radio Free Albemuth on in the background right now!—the controversy has only become more divisive and resulted in sillier and sillier attempts to sell sizzle instead of steak.3

How ironic that we can now see many of the same monopolistic effects railed against in Parliament four hundred years ago… and that this time the monopolists justify their rents with not just their financial and technological prowess, but with twisted interpretations of copyright (particularly work for hire) and commercial law. The various book-scanning lawsuits only touch the surface, primarily because they can't: In American courts, one ordinarily engages with philosophical underpinnings only at the appellate level, usually constrained by factual circumstances "established" on behalf of a single set of litigants by counsel who (by the nature of the attorney-client relationship) cannot give primary weight to the big picture… or the little text.

  1. Compare Millar v. Taylor, 4 Burr. 2303, 98 Eng. Rep. 201 (K.B. 1769) (finding that copyright is a common-law right approaching a natural right, and therefore not subject to temporal limitations imposed by the Statute of Anne and its successors) with Donaldson v. Beckett, 4 Burr. 2408, 98 Eng. Rep. 257 (H.L. 1774) (overrulling Millar and holding that copyright is a statutory right strictly construed under the statute). More recently, the US Supreme Court has struggled with a twist on this dichotomy in Eldred v. Ashcroft, 537 US 186 (2003); unfortunately, Eldred never grasps the underlying argument, but instead loses itself in the thicket of negative space and dormancy surrounding the IP clause (and, IMNSHO, narrowly gets it wrong).
  2. My disdain for Updike comes from actually having read his works. Sadly, Updike is generally a better book reviewer than he is a novelist; too much of his work depends upon a "New England rules all" attitude and assumptions that his culturally bounded aspirations must necessarily be adopted by his readers (else the readers are beneath him). His novels—particularly those concerning Rabbit Angstrom—also include a curiously antiintellectual riptide lurking beneath the text; but that kind of literary analysis should be saved for another day. Suffice it to say that I do not hold Updike in nearly as great repute as do most of the literati referred to in the WaPo article cited above.
  3. I can think of nothing goofier than—or, for that matter, more egotistical than—the arguments that rage in the world of fashion over "original designs" and "copycats." It's not that the devil wore Prada; he just cleaned up selling it… and yes, I do intend all of the Dantean implications of that wordplay.