Sunday, July 4, 2010;
The Intellectual Property Wars From Gutenberg to Gates
By Adrian Johns
Univ. of Chicago. 626 pp. $35
In 2008, as part of a copyright suit, a federal judge ordered Google, which owns YouTube, to turn over to Viacom the viewing records of every video watched on YouTube, including the login names and computer addresses of every viewer. One corporation's efforts to enforce intellectual property rights turned out to pose a dramatic threat to the privacy of tens of millions of users. (Last month, the court summarily ruled in favor of YouTube against Viacom.) And not long ago, Congress created a "copyright czar" charged with mounting a "war on piracy." That war now threatens to turn government lawyers into snoops and enforcers on behalf of corporate interests.
In his invaluable book "Piracy," Adrian Jones argues that the tendency of intellectual property battles to undermine privacy is not new. On the contrary, Johns, a history professor at the University of Chicago, argues that ever since the medieval and Enlightenment eras, corporations have tried to defend their economic interests by searching for intellectual piracy in the private sphere of people's homes. He says that all of our current debates about intellectual piracy -- from Google's efforts to create a universal digital library to the fight over how vigorous patents should be -- have antecedents in the copyright wars of earlier eras.
After the first printing press arrived in England around 1471, intellectual property rights in books were enforced in two ways -- through monopolies granted by the crown or through guild registration with a Company of Stationers charged with punishing violators who reprinted books without permission. From the beginning there was a strong geographical dimension to printing: Legitimate, properly registered books were supposed to be published in respectable printing houses or homes, while reprinted, pirate copies, such as seditious books criticizing the crown, were said to be published by "private" presses -- in "holes" or "corners" hidden from respectable society. The right to search a printing house was crucially important to enforcing intellectual property rights, but constables of the crown didn't enjoy that privilege. Instead, self-policing by members of the guild ensured against invasive searches: A guild member who authorized the search of a fellow printer's house was likely to be investigated himself by the same printer in return.
In the late 18th century, London booksellers -- threatened by Scottish and Irish reprinters who pirated their books -- tried to extend this system of self-policing throughout the United Kingdom. They asserted a kind of perpetual literary property, rooted in the customs of the trade and policed by their own corps of roving agents. This gambit dramatically backfired when challenged by the "pirate in chief," a Scottish reprinter named Alexander Donaldson, who claimed that the asserted right of private agents to snoop in private homes threatened the public sphere. In 1774, in the most important copyright case in Anglo-American legal history, the British House of Lords sided with Donaldson and rejected the idea of a perpetual copyright. The pirates had successfully cast themselves as defenders of free speech, privacy and the public domain.
Johns shows how a similar pattern recurred in the 19th and 20th centuries. In 1902, music pirates took advantage of a revolutionary process that allowed for the exact copying of sheet music, which they sold far more cheaply than the original publishers did. The sheet music companies successfully lobbied the government for a dramatic strengthening of copyright law -- one that many people saw as a threat to civil liberties. It allowed the police, on the request of a piracy victim, to seize illicit sheet music without first getting a warrant. The law didn't allow forced entry into houses, since it assumed that pirated sheet music was sold on the streets, but after a few high-profile raids, the pirates began to portray themselves, in court and in the newspapers, as "heroic defenders of domestic privacy." And when the British government, in an effort to combat radio piracy in the 1920s, said that the right to enter homes was the key to maintaining the state's "control of the ether," critics responded that abolishing the radio would be better than forfeiting liberty.
In the course of describing these intellectual and economic battles, Jones includes memorable stories of a variety of Pirate Kings, such as Matthew Carey, the 19th-century American pirate and economic nationalist who campaigned for the free reprinting of European pamphlets. He was so single-minded that his son denounced him for allowing his cause to destroy his family, leading Carey to accuse his son of "filial treason" and challenge him to a duel.
Johns ends with an insightful chapter describing how the old battles between property, piracy and privacy are being replayed today. The debate over Google's book-scanning project recalls Enlightenment-era attempts to create a universal library through mandatory book depository laws, debates over pharmaceutical patenting were anticipated in the Victorian era, and the file-sharers of today resemble the home-tapers of the 1960s.
Now that digital rights management technology has the capacity to invade the privacy of the home far more dramatically than the constables of old, and now that the U.S. government has alarmingly committed its enforcement powers to uphold corporate property rights in ways that are even more invasive to domestic privacy, Johns suggests rethinking the distinctions that have defined the intellectual property wars for centuries. He criticizes as obsolete the distinction between literary creativity, which is regulated by copyright, and mechanical creativity, which is regulated by patents. A modern taxonomy, Johns suggests, might focus on the distinction between digital and analog copies or -- even more radically -- recognize multiple categories of material regulated by different legal regimes: "genetic, digital, algorithmic, inscribed, and more." Although "more complex in theory," this system might be simpler to use in practice, because it would more closely reflect the "contours of creative life." Since "the history of piracy is the history of modernity," Johns concludes in this challenging, richly detailed and provocative book, the choices we make about how to balance property, creativity and privacy will define "the contours of creative life" for the 21st century.
Jeffrey Rosen, a law professor at George Washington University, heads the Project on Technology and the Constitution at the Brookings Institution.