Digital Barbarism, page 14
What has Macaulay done? Well, he was speaking in Parliament, and he used a tried rhetorical trick, calling two entirely different things by the same word that in different circumstances can apply to either, and then by invisible elision transforming the one into the other as he pleases and for his own purposes. In the figurative sense of exclusive control, copyright is a monopoly, but to label it as such is meaningless, as it is no more a monopoly than the monopoly anyone exercises over his labor, or the monopoly anyone enjoys in regard to his property, or the monopoly someone might have over the sale of a watermelon he grew in his garden.
In fact, my copyright is less a monopoly than my physician’s monopoly on his labor because whereas my copyright expires, the practice he may leave to his heirs or assigns (he built a practice, I wrote books) does not. The concepts, ideas, methods, and means within a copyright are free for anyone to appropriate, whereas no one is free to appropriate the labor of a laborer. My work can be excerpted at will according to the doctrine of fair use. And the law grants my work to the blind—which I approve—whereas an ophthalmologist may, and usually does, bill them, as do their landlords, the electric company, and so on, including even the welfare state, which, while exempting them from paying for my copyright (though overlooking groceries, medical care, and everything else) then proceeds to tax them in ways both creative and virtually inescapable.
And, then, no copyright results in exclusive control of any commodity. Books are not fungible, and, even if they were, no one has a copyright over all or even a plurality of them. Surely Macaulay, whose reputation though repeatedly undermined has nonetheless endured for almost two hundred years, could not be so obviously and transparently dishonest as to skate along such slippery ice. But he does, for shortly after his declaration that copyright is a monopoly producing all the effects of monopoly, thinking that perhaps his deception will carry (and indeed it has, for some, even so many years later), he pushes ahead full bore and asks rhetorically, “Why should we not restore the monopoly of the East India trade to the East India Company?…I may with equal safety challenge my honorable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Company’s monopoly of tea, or by Lord Essex’s monopoly of sweet wines. Thus, then, stands the case.” 71
Copyright does not create a “monopoly of books” any more than the exclusive right to sell one’s pound of tea or one’s watermelon creates a monopoly of tea or watermelon. The damaging effect of such a monopoly over the sale of tea would be that the commodity is controlled in its entirety and therefore so is its quality, or lack thereof, and its price. There is no monopoly of books, and never has been. Not even Barnes & Noble has a monopoly of books (yet). Who, exactly, in Macaulay’s estimation, had a monopoly of books at the time he made his accusations? As a holder of copyrights, did he himself, as he implies? He could not have imagined that he did, but it would have been an interesting exercise. Think of a Barnes & Noble Superstore, or one of the great English bookstores, or FNAC in Paris, or Powell’s in Portland. You enter in full expectation of an hour skimming the surface of an overwhelming treasury, but then you find—admittedly, in many languages, formats, and editions—only the works of Macaulay. Macaulay’s histories, Macaulay’s essays, Macaulay’s speeches, Macaulay’s letters. That would be a monopoly of books, a nightmare world, but hardly reality. And yet this was the world he somehow posited, and this was the condition against which he molded his grandly stated but inapplicable and immaterial argument. Thus, then, stood the case, and thus, then, it falls.
Perhaps Macaulay’s best argument is his warning—drawing from examples in regard to Richardson, Boswell, and Wesley—that someone, presumably family members left in control of an author’s works for a period after his death, will suppress them out of ignorance, spite, embarrassment, disagreement, or any combination of these things. His own circumstances vaguely suggest that he may uncharacteristically be close to making sense, in that he repeatedly holds up booksellers and their descendants as the villains in the piece, and his mother’s father was a bookseller. Perhaps no serpent has sharper teeth than a child’s embrace of a cause hostile to a parent’s deepest belief, but we shall leave that to Freudian tragedians. It is a good argument, the best he offers, but although one can even reinforce it with further examples—such as Lady Burton’s incineration of her husband’s possibly randy papers—it can also be countered: if not fully, then at least enough to illustrate that Macaulay’s remedy is disproportionate.
Because the suppression he fears goes against human nature and self-interest, its likelihood is slight. It is in fact exceedingly unlikely. Rather than people suppressing the work of their forbears, they crowd the channels of publishing with attempts to promote it, especially given that the slightest touch of fame or even, particularly these days, infamy, will be to their practical advantage. You could probably make a really fat category in the Dewey Decimal System to shelter scandalous books that people write about their scandalous ancestors, much less worshipful accounts and level-headed ones.
Further, a writer himself has this right during his lifetime and is just as likely to exercise it: that is, unlikely (but, in view of shame, conversion, and embarrassment by youthful indiscretions, not impossible). Presumably, however, he would rather, in regard to this right, exercise constructive influence and wisdom in delegating it. Entirely apart from any consideration of money, I would much rather have my children in charge, and in charge of subsequent delegation, of a book I might write, than simply floating it out into the hands of anyone who might distort or violate it. And, who knows, perhaps relatives who might withhold and suppress might be correct in doing so. It would have been a great loss had Boswell’s eldest son, who was mortified by his father’s subsidiary relationship to Johnson, been able and willing to withhold for a time the publication of the Life (the destruction of a manuscript and obliteration of a work, as in Richard Burton’s case if one considers his papers the work they undoubtedly were, is a subject and peril unrelated to the question of copyright or copyright extension). But how fortunate if a young and hypothetical Brittany Hitler, after her father’s hypothetical death and as the Nazi Party was about to pick up steam, could have suppressed Mein Kampf.
Not surprisingly, Macaulay closes his weak argument with bluster. In this case, both a prediction and a threat. If copyright protection were extended beyond the life of the author, he predicted, shall we say, vigorously, “Just as the absurd acts which prohibited the sale of game were virtually repealed by the poacher,”—please note that the act against which Macaulay spoke did not prohibit the sale of books—“this law will be virtually repealed by piratical booksellers.” He then spends nine lines explaining that “at present the holder of copyright has the public firmly on his side,” and that in regard to copyright, non-extended, “pass this law: and that feeling is at an end…. Great masses of capital will be constantly employed in violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in on the plot.”72
A declaration so ringing and so firm begs the question, if one were so willing to violate a copyright a year after the author’s death, then why not a year before? If ten years after, why not ten years before, and so on? The public is all for authorial rights, and is firmly on the side of the author and his requirements—until his death, when, presumably, his wishes would mean nothing. The public, having honored him the day before, would no longer honor him the day after his death, because he would have been blank in regard to projecting what would follow him. This would of necessity be based on Macaulay’s supposition that a deceased author, supposedly like Johnson, would not have valued extension. And it would be a rather arcane motivation for so widespread and, according to Macaulay, passionate a crime. Not only is it logically impeachable that an author would rather have some shin of beef than the extension of his rights and thus the grant of their heritability, but if such an author existed, then he could easily refuse such an extension. If he did not, then by definition he would value it, thus destroying the structure of Macaulay’s rationale, mocking his indignation, and invalidating his predictions. And, vastly in the main, of course, authors do not make such refusals.
Macaulay’s general prediction comes in the form of a question posed in 1841 and answered thoroughly in the more than 167 years since. “The question is whether some book as popular as Robinson Crusoe or The Pilgrim’s Progress, shall be in every cottage, or whether it shall be confined to the libraries of the rich for the advantage of the great grandson of a bookseller.” 73 This question is representative of Macaulay’s belief, and that of his modern devotees (most of whom probably have not read him), that copyright suppresses, stunts, and retards the flowering of culture, and specifically the production and availability of books. The answer is decisive.
Not only the original but subsequent acts have been passed, their existence putting to the test Macaulay’s theme of works locked up, the deleterious effects of ‘monopoly,’ his general argument, and the validity of his predictions, which are nothing if not embarrassing. How embarrassing? In 1825 approximately 600 titles a year were issued in England; by 1900, 6,000;74 in 2005, 206,000.75 And that is just England. The United States followed closely with 172,000,76 with the number of books published just before the 1998 “infamous” Sonny Bono Copyright Extension Act almost tripling within seven years.77 In 1998, Peru (that is, Peru) published three times as many books as did England in 1825.78 What might Macaulay think of the fact that, a century and a half after he spoke, the southern half of the Korean peninsula saw the publication of 30,500 books?79 Or that Spain, sun-drenched, primitive, bone-dry Spain, published nearly 50,000 books, 170 newspapers, and 2,000 periodicals?80
In 1851, the Library of Congress held 55,000 volumes, far fewer than a Barnes & Noble Superstore. Five years beforehand, it had been directed by law to receive one of each copyrighted “book, map, chart, musical composition, print, cut, or engraving.” By 1992, its collection comprised more than a hundred million such items, including fifteen million books. But this is by no means the overflowing predicate to Macaulay’s major subject, for the predicate would be enlarged if the Library did not shunt most works on medicine and agriculture to the national libraries established in these fields. And it would be further immensely enlarged were the Library required to keep each copyrighted work it receives, which it is not, and therefore does not, though from 1870 to 1909 it did. The scope of what is not represented may be appreciated from the fact that on an average day 31,000 items are delivered to the Library, of which it keeps on average 7,000.81 Though it is thus impossible to determine fully the scale of what former President G.W. Bush would call Macaulay’s “misunderestimation,” even the figures that are the predicate’s minimum might now actually be known to Macaulay, as they might be for him an embarrassment sufficiently intense to wake the dead.
Nor do these data require adjustment or division in light of population growth, economic development, or technological advantage, as the bar of copyright extension imagined by Macaulay and his modern retainers would operate uninfluenced by such changes, such as, for example, a red light will stop (or, as I live in Virginia, I must say should stop) a line of traffic whether it consists of two Model-Ts and a buckboard with sharecroppers and nuns on it, or a thousand Ferraris filled with Welsh supermodels and eurotrash. That is, although one cannot say with absolute certainty that copyright was either necessary to or sufficient for this expansion, or with absolute certainty that the expansion would have been either greater or lesser without copyright, one can say definitely that contrary to Macaulay’s predictions and their repetition by disciples blind to fact, copyright as it strengthened did not prevent an immense efflorescence of publication such as civilization had never before experienced.
Like Marx, Macaulay has been proved wrong by reality and the long and steady development of the facts. And yet, like the Marxists, Macaulay’s parrots continue to repeat every argument as if it had not been disproved by continuously evident actuality—as if facts were only dreams and dreams were facts. And they still imply that if copyright exclusivity is not overturned, the rivers of publication that have issued forth during copyright, will (paradoxically) dry up.
I apologize for not being a lawyer, except that it may allow me to comment sensibly upon the law. There is the law as it is intended, which, granted, can never be perfectly understood and would not submit to flawless interpretation even were it to have originated in one clear mind, much less in hundreds of legislative minds—which is why it is necessary to have lawyers. And there is the law of lawyers: that is, law as it was originally intended but then tortured for the rest of its life like a prisoner in the Château d’If.
To understand the perils faced by each of the laws as it exists for year after year among a million patient, bulldog-like talkers, one need only have had in college a sophomore roommate in his first philosophy course, and who, having been drawn to Bishop Berkeley, informs you that the table at which you are eating does not exist, and, when challenged to pass his hand through it, assures you that his hand does not exist, and then must be silent when informed that a hand that does not exist should be able quite easily to pass through a table that does not exist.
In a very short time he is cured of this—unless he goes to law school. If he does, he will first learn the lawyer’s prayer—“God grant that I shall be superficially mauled by an alligator at the Snow White Breakfast at Disney World”—and then spend a large portion of the rest of his life arguing in excruciating detail that this or that thing must be treated as if it does not actually exist, or, if it does not in fact exist, as if it does. Supposedly to protect innocent persons from the criminal abuse of the law by its agents, the policeman is not held to account for his errors or abuse; rather, the mass murderer is set free, presumably to change the policeman’s ways, but what does the policeman care, especially if he himself is lawless, corrupt, and escapes punishment? A contract is deemed unenforceable because a judge agrees with his intoxicating and bosomy clerk that the provision, “$100,000 shall be allocated for the purchase of safety equipment,” does not mean that said $100,000, or any part of it, need actually be spent for safety equipment. Rather, these dollars have the privilege of being hypothetically corralled, not necessarily in a vault or even a separate account but solely in the exercise of a mind or two, there to be forgotten, or perhaps to be spent by Bishop Berkeley. People who enjoy a specialty power often forget that it has been granted to them by a dog that does not want to be wagged by its tail, no matter how caught up in hypotheticals the tail may have become.
The law is imperfect, we are imperfect, this is the system we have and that we must struggle forever to balance judiciously. The system allows and encourages advocates at the bar to stretch like yawning lions and propose like madmen, to say things that only the Cheshire Cat would say, and knowingly and shamelessly to take unfair advantage of gaps in the law that powerlessly admit absurdities. But it also provides judges to correct the absurdities, the unmoving text of the laws to correct the judges, the legislatures to have power over the laws themselves, some of the laws themselves to have power over the legislatures, the Constitution to be a guide for all, and, finally, the people—with various intervals of patience and procedure required of them—to have power over the Constitution itself. At times this power is exercised directly when the Constitution is amended, but mostly it is indirect, like a fleet-in-being, magically enforcing discretion, common sense, and reticence upon functionaries and practitioners who might otherwise possess inordinate power.
And no matter how much they may protest, the law is anything but the exclusive province of lawyers. The higher and more consequential it gets, the more this becomes both necessary and obvious. In fact, and thankfully, the law is no more the exclusive province of lawyers, and especially law professors, than tables are the exclusive province of Bishop Berkeley. This is important to note because of the tendency of lawyers, openly and proudly abetted by many law schools, to claims of superiority in regard to policy questions over which they have no more superior right or understanding than would a cucumber. These (questions, not cucumbers) they attempt to abduct from the public square and imprison in their seraglio awaiting a kind of involuntary sex change.
So it is with many things, not least copyright, which some lawyers have attempted to kidnap for adjudication when it is a question not of law but of policy. The slow development of the printing press over centuries was paralleled by the origination of protections for something new in the world: the ability to make many copies of a work mechanically, more or less flawlessly, cheaply, and rapidly. Such a thing had not existed before, and the new form of property at issue did not fit cleanly with the common law as it had evolved in dealing with properties of a different nature.
The difficulties of the common law in their application to copyright were ever present, and in recognition of reaction to this, copyright diverged slowly but firmly from the common law into statute law, the first great benchmark of which was the 1709 Statute of Queen Anne, “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of Such Copies.”
It began:
Whereas printers, booksellers, and other persons have of late frequently taken the liberty of printing, reprinting, and publishing…books and other writings, without the consent of the authors or proprietors of such books and writings, to their very great detriment and too often to the ruin of them and their families: for preventing therefore such practices for the future, and the encouragement of learned men to compose and write….82
