Digital Barbarism, page 13
Starting at the edges, consider the following from Professor Boyle, writing for the Financial Times web site: “Thomas Macaulay, another brilliant thinker whom Mr. Helprin would doubtless think naive, made the case just as eloquently for copyrights [he means against extension: no matter] as Jefferson did for patents…. Would Dr. Johnson have wanted a copyright term to last more years after his death? ‘Would it have once drawn him out of his bed before noon? Would it have once cheered him under a fit of the spleen? Would it have induced him to give us one more allegory, one more life of a poet, one more imitation of Juvenal? I firmly believe not. I firmly believe that a hundred years ago…he would very much rather have had twopence to buy a plate of shin of beef at a cook’s shop underground.’ Readers, by all means send a shin of beef to Mr. Helprin. Let us hope he prefers it to his current argument.”56
A shin of beef is a very large piece, which is why no doubt Macaulay spoke of a plate of it, in cuts. Saying “Send a shin of beef,” is comparable to saying, “Send a redwood” to someone building a redwood deck. We have the word some to buffer such inexactitude. But that’s what you get when, because you are writing for an English publication, you want to get both flouncy and ruthless, using the language like a decorated cudgel. The English style of debate rewards ruthless wit, but only if it is coupled with coherent argument and is itself effective and precise. Absent that, there is very little. Rather than wit, what is apparent here is a desire to appear almost English, an embarrassing phase some insecure colonials enter never to exit. It was what, when I was a boy, we used to call “hoity-toity.” People who were hoity-toity named their children Chauncey, Gaylord, and Marmaduke rather than Satchmo, Izzy, and Paisan. The names they chose were not a problem. But what was a problem was that they would pronounce hoity-toity “hwa-tie twa-tie.”
It is Macaulay, however, who must be addressed, and not his clumsy admirers. I do not, in fact, think him naïve, but, rather, spiteful, duplicitous, vengeful, cruel, and part of the forever enduring tragedy that those who should have the least self-doubt have the most, and those who should have the most have the least, a subject addressed with unsurpassed eloquence by William Butler Yeats, who was just an Irishman. Macaulay displays himself to greatest disadvantage not in regard to copyright, where he merely fails in logic and prediction, but in regard to his deliberately distorted treatment of the Duke of Marlborough, even in the face of evidence that Macaulay cloaked lest it impeach his case and choke off his self-indulgent and easy-flowing bile. Churchill’s handling of this in Marlborough is a virtually airtight case against Macaulay as a judge of character and circumstances, and brings to light a suspect integrity. What else can one reasonably conclude about someone who unfairly represented Marlborough based on the misinterpretation of evidence; evidence that he knew to be false; and the evidence, contradicting his findings, of which he was aware and that he ignored?
But, character aside, in the pompous quotation pompously offered by Professor Boyle, Macaulay is wrong. Johnson, in Macaulay’s presentation a kind of nineteenth-century romantic high-mindedly indifferent to money, was the one who said, “No man but a blockhead ever wrote, except for money.”57 This was because he was not only a multifaceted genius but also an intensely practical man who lived most of his life either suffering himself or witness to the suffering of others in Hogarthian poverty: “Ah, Sir, I was mad and violent. It was bitterness which they mistook for frolic. I was miserably poor, and thought to fight my way by my literature and my wit.”58 And by Boswell’s account, “No royal or noble patron extended a munificent hand to give independence to the man who had conferred stability on the language of his country.”59 When finally he exited abject poverty, Johnson was certainly aware that he might not have, and that a steadier and more dependable source of income, linked directly to one’s efforts and talents and available to a wider range of persons, would have been preferable to rare royal largesse or the pity of strangers.
Given that he lived so much of his life in Grub Street, where he once attended a dinner and ate behind a screen, so ashamed was he of his ragged clothing; where his friend John Hawkins wore paper cuffs, pawned the pages of his books as he wrote them, and literally sold the shirts off his back and wrote naked, in the hope but not always the success of staving off his hunger; and given that all Johnson’s adult life he extended his charity to a succession of waifs that he took in and supported, how could he not have appreciated the prospect of a more stable estate for the benefit of his heirs, and for the family he might have had, had writers been better protected, and for those whom he made his family despite their misfortune and distress? Even a cursory reading of Johnson’s life would suggest this. That Macaulay, whose knowledge of Johnson went so far beyond this would come to such a different conclusion is indicative of a failure of understanding that would be amplified in his more general arguments.
Unlike many who cite him, Macaulay was in favor of copyright during the author’s life, a “privilege, which I should…be prepared to defend strenuously against any assailant.”60 It was the right of inheritance of a copyright that vexed him. Throughout his famous speech he asserts that the cost to the public finds no balance whatsoever in any benefits to the copyright holder, who, by definition in this case, is dead. This is the source of his otherwise inexplicable claim that Johnson would prefer twopence rather than (according to the terms of the bill then under consideration) an extension after his death of sixty years.
Instead of saying, like a simpleton, that nothing matters to someone after he is dead, Macaulay, who certainly was aware of man’s ability to plan, project, and sacrifice, puts a sophisticated gloss on it: “We all know how faintly we are affected by the prospect of very distant advantages, even when they are advantages which we may reasonably hope that we shall ourselves enjoy. But an advantage that is to be enjoyed more than half a century after we are dead, by somebody, we know not by whom, perhaps by somebody unborn, by somebody utterly unconnected with us, is really no motive at all to action.”61
Is this why from time immemorial and across all societies people have been so unconcerned about inheritance, and willing to relinquish the prospect? Macaulay’s claim is disproved only by the structure of the society in which he lived, and those throughout almost all the world at almost all times; by the actions and motives of aristocracy; by inheritance; by concern for the extension of one’s line; and by the millions who sacrificed their lives to build nations, protect tribes and ethnicities, accumulate wealth, and advance every conceivable cause and belief—all beyond the span of their natural lives. What of someone who reduces his “carbon footprint” in the belief that it will benefit people with no connection to him whatsoever, hundreds of years from now? How “faintly” is he “affected by the prospect of very distant advantages”? I cannot believe that because Macaulay had neither wife nor child he would be numb to mankind’s universal concern for future generations, especially one’s descendants, especially, if we are considering the term he disapproved, one’s own children and grandchildren. For whatever reason, his argument is not even strong enough to be characterized as weak.
Perhaps sensing its vulnerability, he attempts to fortify his claim in yet another peculiar foray. Who would benefit if Johnson’s copyright outlived him? According to Macaulay, “It would have been some bookseller, who was the assign of another bookseller, who was the grandson of a third bookseller, who had bought the copyright from Black Frank, the doctor’s servant and residuary legatee.”62 This is the passage that stimulated the hissy fit about the shin of beef.
It posits four different owners in fifty-six years, a new one every fourteen years. Despite Macaulay’s inexplicable declaration that, “It is…highly unlikely that it [copyright] will descend during sixty years or half that term [that is, thirty years] from parent to child,”63 it seems in fact very likely that it would, and that even in the case of a man who died childless such ping-ponging would be unusual. But, take even the case of Johnson. According to Macaulay, he would have derived no benefit from the ability to pass on to someone else or others the extension of his copyright. But what about Black Frank, or Milton’s impoverished granddaughter for whom Johnson had written a prologue, or any of Johnson’s many “waifs”? Which would he rather have had, twopence, or the satisfaction of knowing that people he loved or wished to help would benefit from what he left behind? What if he, quite apart from benefiting his families, wanted to bequeath to a church, an orphanage, or a hospital? If the copyright were of any value, he could so direct it.
In the absence of copyright, as copyright and copyright-extension opponents so often point out—inaccurately, as we shall see—there is a diffuse and general public benefit in the potential of lower-priced editions. But even were it greater than it is in fact, by what right can anyone claim to dictate to another not only the choice of his charities, but that he can’t choose at all, and must see his work spread upon the wind like dandelion seed? Perhaps Samuel Johnson thought, and desired deeply with his heart, that the best use of what he had done would be to direct the revenues from it to a children’s hospital, or a library, or a poorhouse. We all make such choices in our setting of priorities and devotion to causes and principles. Who has the moral right to tell us that we cannot? Macaulay would claim that the easier availability of Johnson’s works is more important than, for instance, taking a child off the streets in eighteenth-century London. Where is the justice of that claim, especially since it is possible that Johnson himself would disagree, that the work was Johnson’s, and that had he owned a brewery instead of a copyright no one would have thought to interfere in his choice.
Back to Black Frank and Milton’s impoverished granddaughter, the latter who, Macaulay claims, was impoverished—despite the perpetual copyright that existed in Milton’s time, and had survived in a patchwork of conflicting claims and rulings well into the eighteenth century—because the rights to Paradise Lost had fallen into the hands of a bookseller. She would hardly have been in a better position had copyright not lasted beyond Milton’s death. That despite perpetual copyright she was impoverished was due to a decision taken by one of her predecessors. If Milton’s descendants chose to sell the copyright, of course they could not continue to benefit from it except from whatever use they might make of the proceeds of sale. The decision was theirs. All wealth, property, and patrimony is subject to risk. Just as any other assets that are bequeathed are subject to growth, erosion, or annihilation, so is a copyright, and so it was then.
Which leads us again to Black Frank, who also would have had a choice. Sell the copyright and make use of the proceeds—perhaps today his descendants would own hotels in the Bahamas—or keep it, which probably would have been the better bet. It is highly illogical, however, to try to prove that copyright extension is unjust because in general the performance of assets is not guaranteed.
In a misfortune that has spread to the contemporary anti-copyright enthusiasts, Macaulay, who cared little for art and was deaf to music, was also blind to economics. In what he terms “a perfect illustration of the effect of long copyright,” he states that “Milton’s works are the property of a single publisher. Everybody who wants them must buy them at Tonson’s shop, and at Tonson’s price…. Thousands who would gladly possess a copy of Paradise Lost, must forego that great enjoyment.”64
Assuming that Tonson’s price is “unreasonably” high, and Macaulay curiously does not state this, were it lower there still would be thousands who would not pay it. With exceptions that are most probably anomalous, the price would be set according to the demand, just as it would be during the author’s life. If the bookseller/publisher elevates it disproportionately, no one will buy. Thus he will not elevate it. It will be to his advantage to set a price on the vector between, on the one hand, the highest he can charge, and, on the other, the highest volume of sales he can achieve. This is how the market works—not by design or decree, not because someone has decided that it would be best that way, but because of the nature of things. If you doubt it, visit a bookstore.
Apparently, Macaulay did: “I can buy Rasselas for sixpence; I might have had to give five shillings for it. I can buy the Dictionary, the entire genuine Dictionary, for two guineas, perhaps for less; I might have had to give five or six guineas for it.”65 He has simply made up higher prices (“I might have had to give…I might have had to give.”) and perhaps even the second lower price (“For two guineas, perhaps for less”). These are not facts he cites but fanciful or unrepresentative illustrations leaping conveniently from his imagination to the defense of his argument. And yet, this argument, specious in 1841, has descended to his hapless present-day admirers, who make similar claims as a matter of course, such as that were Mark Twain’s works still protected, schoolchildren would not be able to read them due to the prohibitive pricing. The facts are different.
For example, readily at hand on the bookshelf next to me as I write is Henry Kissinger’s Diplomacy, copyrighted of course, in paper, published in 1994, at 911 pages, two pounds eight ounces, and with photographs, priced at $22. The Adams-Jefferson Letters (the editing under copyright but the contents in the public domain) published seven years earlier, 638 pages, at two pounds three ounces, with no pictures, and assisted by a grant from the Lilly Foundation, is also available. Despite its earlier publication date and that it is only two-thirds the size of the Kissinger (anything would be), and was subsidized, it costs not 1,000 percent less (as Macaulay would have it) but the same $22.
In fiction, you can buy Les Misérables, plucked from the public domain, in a Modern Library binding, at 1,260 pages and two pounds nine ounces for $25.95. And you can buy (and I wish you would) my A Soldier of the Great War, copyrighted thank God, in trade paper with a beautiful Bellini on the cover, at 860 pages and two pounds, for $16. The Hugo is 47 percent larger and 28 percent heavier, but it is also 62 percent more expensive, not 1,000 percent less expensive. True, you can get an economy edition of Les Misérables for $7, but you can also get the mass market edition of A Soldier of the Great War for $6.
Beyond the 15 percent author’s royalty on hardcover and 7.5 percent on paperbacks, copyright has little effect on book pricing. Publishers and booksellers know that other than the few people who for some reason must have a particular book, their customers have a wide choice, and will be put off by price. If only a few books were available, it might be different, but there are at any time hundreds of thousands, even millions—a choice that allows very few publishers to be either grasping or coy with the public: these impulses they save for dealings with their writers.
Neither Macaulay nor his disciples of the present confine their imprecision to such practical examples, but expand it to embrace higher things as well. Macaulay writes, and his followers frequently and thoughtlessly repeat that, “The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers.”66
Words have meaning, and it is not good to be careless with them, like the official who said that a border shouldn’t be a line between nations. When I was young I spent some time reading the dictionary. In so doing, I happened upon a definition of masturbation as “self-abuse.” (As to the accuracy of this, ask Philip Roth.) It slept in my mind like a locust, until it emerged when my ninth-grade history class was asked to describe how the monks lived during the Middle Ages, and without the least bit of self-consciousness or embarrassment I volunteered that they were known for their incessant masturbation.
In Eldred v. Ashcroft, the banner case of the anti-copyright movement, and deservedly so, in that they lost, Mr. Justice Breyer (or a young insufficiently critical clerk mentally vacuuming from the petitioner’s brief) conflates in his dissent the Constitution’s copyright clause with Macaulay’s description: “The clause authorizes a ‘tax on readers for the purpose of giving a bounty to writers.’”67 It does no such thing, and copyright is not a tax.
It is not a tax any more than a workman’s wage or the price a merchant receives for a sale, or a fisherman for his fish, is a tax. One of the differences between a price and a tax is that the latter is compelled. And to argue that copyright entitles the holder in certain circumstances to draw upon the compulsion of the law does not make copyright a tax any more than a merchant drawing upon the compulsion of the law to deal with a shoplifter makes his price a tax. Were Macaulay speaking here in a literary sense, which he is not, he might mean a burdensome charge or an unjust requirement, but how is copyright any more a burdensome charge or unjust requirement than any other price for any other product or service? I cannot understand how a man who can write such majestic prose fails so often and so disastrously to grasp the conspicuous distinctions that separate one fairly simple word from another.
I can understand, however, that his modern imitators might fail to understand distinctions, especially when they venture into what for them are the higher regions of theory. One example they have robotically imbibed from Macaulay is the notion that, “Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly.”68
The opponents of copyright, or its extension, including Mr. Justice Stevens (or a young insufficiently critical clerk mentally vacuuming from the petitioner’s brief), who, in Eldred, wrote of copyright’s “monopoly privileges,”69 have even less a grasp of the word monopoly, which is derived from the Greek monos, meaning single or alone, and poolein, meaning to sell. It has always been primarily understood, as the OED would have it, as “exclusive possession of the trade in some commodity,” or “an exclusive privilege (conferred by the sovereign or the state) of selling some commodity or trading with a particular place or country.” Or, figuratively, “exclusive possession, control, or exercise of something.” 70
