Tulsa Law Review Volume 50 Issue 2 Book Review Spring 2015 Reading Intellectual Property Reform Through the Lens of Constitutional Equality Jessica Silbey Suffolk University Law School Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Jessica Silbey, Reading Intellectual Property Reform Through the Lens of Constitutional Equality, 50 Tulsa L. Rev. 549 (2015). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol50/iss2/13 This Book Review is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Silbey: Reading Intellectual Property Reform Through the Lens of Constitu 50 TULSA L. REV. 549 (2015) READING INTELLECTUAL PROPERTY REFORM THROUGH THE LENS OF CONSTITUTIONAL EQUALITY Jessica Silbey* BILL D. HERMAN, THE FIGHT OVER DIGITAL RIGHTS: THE POLITICS OF COPYRIGHT AND TECHNOLOGY (2013). Pp. 264. Hardcover $ 32.99. ARAM SINNREICH, THE PIRACY CRUSADE: HOW THE MUSIC INDUSTRY’S WAR ON SHARING DESTROYS MARKETS AND ERODES CIVIL LIBERTIES (2013). Pp. 256. Paperback $ 26.95. ROBERT SPOO, WITHOUT COPYRIGHTS: PIRACY, PUBLISHING AND THE PUBLIC DOMAIN (2013). Pp. 384. Hardcover $ 35.00. The three books selected for this book review tell intellectual property (IP) stories that are familiar to many students of copyright. In The Fight Over Digital Rights,1 Bill Herman explores the expansion of copyright from the 1976 Copyright Act to its 1998 reform encompassing both the term extension and digital rights.2 Herman’s book ends with the demise of the Stop On-Line Privacy Act (SOPA) and Protect IP Act (PIPA) in 2012, suggesting that Internet activism may be a game changer in copyright law.3 Robert Spoo’s Without Copyrights: Piracy, Publishing, and the Public Domain4 tells the story of the entrenched protectionist tendencies of the U.S. book publishing industry throughout the twentieth century at the expense of modernism’s great authors (Joyce, Pound, Eliot, Yeats) but to the benefit of the U.S. public domain.5 Aram Sinnreich’s The Piracy Crusade: How * Professor of Law, Suffolk University Law School. Ph.D., J.D. University of Michigan, Ann Arbor; B.A. Stanford University. With thanks to Linda McClain, Rebecca Curtin, the editors at the Tulsa Law Review, and participants of the University of Victoria Colloquium in Political, Social and Legal Theory. 1. BILL D. HERMAN, THE FIGHT OVER DIGITAL RIGHTS: THE POLITICS OF COPYRIGHT AND TECHNOLOGY (2013). 2. Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified at 17 U.S.C. §§ 302-04 (1998)); Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended at 17 U.S.C. §§ 512, 1201-05, 1301-22 (1998)). 3. See Larry Magid, What are SOPA and PIPA And Why All the Fuss?, FORBES.COM (Jan. 18, 2012, 10:14 AM), http://www.forbes.com/sites/larrymagid/2012/01/18/what-are-sopa-and-pipa-and-why-all-the-fuss/ (discussing the controversy surrounding SOPA and PIPA). 4. ROBERT SPOO, WITHOUT COPYRIGHTS: PIRACY, PUBLISHING AND THE PUBLIC DOMAIN (2013). 5. Until 1989, foreign copyright owners had significant difficulty securing U.S. copyright protection because of technical formalities (such as notice and registration) and because of the “manufacturing clause,” 549 Published by TU Law Digital Commons, 2014 1 Tulsa Law Review, Vol. 50 [2014], Iss. 2, Art. 13 550 TULSA LAW REVIEW [Vol. 50:549 the Music Industry’s War on Sharing Destroys Markets and Erodes Civil Liberties recounts the rise of peer-to-peer (P2P) technology and the music establishment’s attempts to thwart further P2P innovation because of the harm of “piracy” but at the expense of further music creation and development.6 Despite telling familiar stories about the expansion of and resistance to copyright protection in the twentieth and early twenty-first centuries, this troika of books also reframes and enriches those debates in important and similar ways. First, the sustained attention to legal and cultural history within the particular fields of focus enlightens the student of political science (Herman’s book), literary history (Spoo’s book), and media studies (Sinnreich’s book). These are no ordinary books about copyright history. Herman’s book is about copyright, but it is also a book about politics and government. You do not need to understand copyright to read this book and learn new aspects of legislative promulgation and reform and how both can dramatically affect resulting substantive and procedural rights. Spoo’s book brings to the reader the written, personal correspondences between James Joyce, Ezra Pound and attorney John Quinn in which they debate copyright, censorship and trade regulation. Spoo’s book is full of modernist gossip and addictive particulars of early versions of great books (such as Ulysses), escapades of “literary swindler[s]” like Samuel Roth, and the negotiated details of publishing contracts and trade courtesies (including negligent business advice and intentionally veiled business advantages).7 Reading both the Herman and Spoo books feels like taking a trip through a living history museum where costumed actors and period furniture conjure vibrant and vital times and places where copyright was critical (the back halls of Congress and the Lower East Side of New York). Sinnreich’s book, although about the more recent past, also leads the reader through an intricate cast of characters—music publishers, labels, broadcasters, recording artists, performers and enthusiasts—who are feathered into his dramatic retelling of the sharing technology’s evolution from piano rolls, to vinyl, audio tape, CDs and digital files. Like nineteenth century realist novels, these three books are bursting with people, places, facts, and chronologies. Second, all three of these books also share a preoccupation with piracy, but each attends differently to it as an idea or problem. In Herman’s book, piracy is an evil to which legislative reform is constantly responding and which, once Internet advocacy takes hold, suffers from a public-relations problem. Herman suggests that the masses of Internet users who are the mobilized constituents of elected congresswomen and men cannot also be the pirates the law seeks to condemn. By the end of his book, he implies that diversifying the participation in democratic deliberation and lawmaking is one way to break open the epithet of piracy to discern how IP laws can be more narrowly targeted to address financially devastating copying while also fostering speech, creativity and innovation on which required for U.S. copyright protection that the copyrighted work be published first in the United States, or published in the U.S. within several months of foreign publication. Failure to secure U.S. copyright meant that works published overseas could be copied and sold in the U.S. without violating U.S. copyright law. These works were effectively in the U.S. public domain upon publication in Europe. Publishing overseas was often desirable because it was less expensive, audiences were more receptive, and censorship of “obscene” material was less frequent. SPOO, supra note 4, at 69-72. 6. ARAM SINNREICH, THE PIRACY CRUSADE: HOW THE MUSIC INDUSTRY’S WAR ON SHARING DESTROYS MARKETS AND ERODES CIVIL LIBERTIES (2013). 7. SPOO, supra note 4, at 182 (internal quotation marks omitted). https://digitalcommons.law.utulsa.edu/tlr/vol50/iss2/13 2 Silbey: Reading Intellectual Property Reform Through the Lens of Constitu 2015] READING INTELLECTUAL PROPERTY REFORM 551 and through the worldwide web.8 Spoo spends much of his book ambivalent about “literary pirates” such as Samuel Roth, the editor and publisher of literary magazines The Little Review, Two Worlds, and Two Worlds Monthly. These magazines were famous for their unauthorized but lawful publication of modernist writers who lost their copyrights because of U.S. copyright laws that did not protect those who first published their writing in Europe. Spoo regularly refers to “lawful piracy” as that which cultivated the U.S. public domain, thwarted the censors, and shaped U.S. literary taste.9 Indeed, Spoo suggests that the unguarded and virulent disputes between piratical publishers like Roth and the modernist writers and artists such as Joyce, Picabia, Brancusi, and Pound recast these “scandalous” and “obscene” modernists as celebrities. “It transformed Joyce from victimizer into victim and recast Ulysses, widely regarded as an instrument of corruption, as an object of legitimate readerly desire and the subject of international praise and sympathy.”10 Sinnreich’s book is devoted to deflating the music industry’s “piracy crusade” by explaining how, in concert with the legal reforms and policies of the late twentieth century, the “anti-piracy agenda” is profoundly wrong-headed. He says it “sacrifices constitutional rights, civil liberties, and international relations in the name of protecting . outmoded business models of a few multinational corporations.”11 Piracy, for Sinnreich, is a strawman for protecting incumbent interests and aggregating wealth for its own sake rather than for achieving the social good of binding communities and enhancing creativity. And, Sinnreich says, when P2P file sharing is considered over the long-term, it appears to provide economic and reputational benefits for both music artists and industry organizations rather than cause irreparable harm. These three books also reframe otherwise familiar discussions about IP in yet a third less familiar way. Over the past decade, the U.S. Supreme Court has issued a handful of copyright decisions that many IP scholars lament and critique as unwise and even wrong: Eldred v. Ashcroft,12 Metro-Goldwyn-Mayer Studios, Inc. v. Grokster,13 and Golan v. Holder.14 Critics assert that these cases misconstrue the Copyright Act and its underlying policy.