Pimps and Ferrets Pimps and Ferrets: Copyright and Culture in the United States: 1831-1891 Version 1.1 September 2010 Eric Anderson Version 1.1 © 2010 by Eric Anderson [email protected] This work is licensed under the Creative Commons Attribution- Noncommercial 3.0 United States License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc/3.0/us/ or send a letter to Creative Commons, 171 Second Street, Suite 300, San Francisco, California, 94105, USA Some Rights Reserved A Note on this Book Humanities academics in the United States generally receive little payment from the sale of books they have written. Instead, scholars write in an economy of prestige, promotion, and duty. Prestige comes from publishing with a reputable university press, from being well-reviewed in important academic journals, and from the accolades of academic peers. For a professionally young academic in the humanities at a medium-ranked institution in the United States, a peer-reviewed book at a mid-ranked University Press is essential for tenure and promotion. The doctoral dissertation (sometimes quite heavily revised) typically forms the core of this first academic book and sometimes several additional articles. Occasionally maligned, the the usual alternative to tenure is termination. Promotion (i.e. from Assistant to Associate Professor) leads to job security and a ten or fifteen thousand dollar increase in annual salary. In this context, book royalties are a negligible incentive. This book is a lightly revised version of my doctoral dissertation, completed in December of 2007. After graduation, I submitted it to a small academic legal studies press, where it was favorably reviewed by the editor of that press and by a knowledgeable senior academic associated with the Press, and accepted for publication. Subject, of course, to suitable formatting, minor corrections, and the completion of an Index. As is not unusual for small academic presses, all of these tasks were my responsibility under the terms of the offered contract. The Press would provide a cover, an ISBN, front matter, and the financing of an initial print run of a few hundred relatively expensive hardbacks. The Press would handle advertising and distribution, and had an established record of selling to important law libraries and academic research collections. I would assign my copyright rights to the publisher for the duration of the copyright (i.e. until 70 years after my death – meaning until at least 2080, and hopefully much longer). There was vi no provision for free electronic distribution of the book, though the contract permitted me to extract material from the book for three traditional academic journal articles. In the academic world, this is a reasonable deal – the Press gets more rights than they immediately need, but a non-standard (more complex) deal requires more legal overhead for them and could complicate potential downstream deals, including perhaps electronically distributing their entire output. The Academic gets a peer-reviewed book that is placed in important library collections, and, subject to the terms of their employment, makes important strides towards job security and a raise. I, however, am not currently employed in academia, and the logic of academic publication thus fails. I eventually rejected the offered contract. This book, then, is a lightly-revised version of the manuscript that was accepted for publication. Known typographical errors have been fixed. Some obfuscatory language has been clarified. A particularly memorable error has been corrected. Pages are sized at A5 for easy printing (2 pages per side), and it should be portable to a variety of devices. This work is distributed under a Creative Commons Attribution- Noncommerical 3.0 license. You can look up the legal details, but as long as you keep my name attached, feel free to copy, print, modify, and distribute this work for any and all noncommercial purposes. If you like the work, find it useful, or use it for a class, and want to reward the author, please do so by further publicizing my work – tell your friends or write a book review. But do drop me a line if you find any mistakes or have questions about potentially commercial uses. Eric Anderson September 2010, Australia [email protected] vii Contents Introduction...............................................................................1 Chapter I: Copyright and Republicanism..................................9 Chapter II: International Copyright.........................................37 Chapter III: Copyright Shadowed by War...............................85 Chapter IV: Copyright in the Gilded Age..............................131 Chapter V: 1891 International Copyright...............................163 Bibliography..........................................................................209 INTRODUCTION The bill in substance provides that […] copyright patents shall be granted to foreigners; they may hold these monopolies for forty-two years; the assigns of foreigners may also obtain copyrights; all postmasters and customs officers throughout the United States are constituted pimps and ferrets for these foreigners; it is made the duty of postmasters to spy out and seize all books going though the mails that infringe the copyrights of foreigners; if an American citizen coming home brings with him a purchased book, it is to be seized on landing unless he can produce the written consent of the man who owns the copyright, signed by two witnesses. Who the said owner may be, in what part of the world he lives, the innocent citizen must find out as best he can, or be despoiled of his property. 2 Pimps and Ferrets The source of this heated prose of pimps and ferrets? The May 19, 1888 issue of Scientific American.1 With the rise of digital reproduction and the expansion of the Internet, copyright issues have assumed tremendous prominence in contemporary society. Domestically, the United States is awash in copyright-related lawsuits. Internationally, fears of copyright violation strongly influence U.S. foreign policy, especially with China. Hardly a week goes by without some new copyright-related headline in the news. In a globalized world with cheap digital reproduction, copyright matters. Far-reaching copyright policy decisions are being made in a historical vacuum, as if the issues raised are unique and unprecedented. Yet copyright has a long and complex history that can be usefully mined for precedents, models and suggestions. Digital reproduction may be new, but piracy, reprinting, and controversy are as old as copyright. As the rage of “pimps and ferrets” expressed by Scientific American suggests, the nineteenth century U.S. was absolutely rife with copyright-related controversy and excitement, including international squabbling, celebrity grandstanding, new technology, corporate exploitations, and ferocious arguments about piracy, reprinting, and the effects of copyright law. These controversies, and others like them, form the raw material for this book. Then, as now, copyright was very important to a small group of people (authors, publishers, and lawyers) and slightly important to much larger groups (book consumers, readers in a variety of sites). However, as this book demonstrates, these readers and consumers had quite definite ideas about copyright, its function, and its purpose, in ways not obvious to the denizens of the legal and authorial realms. My goal, simply put, is to contribute to contemporary understandings of copyright by showing the varied and interesting 1 “New Copyright Bill Now before Congress.” Scientific American. May 19, 1888. 304. The bill in question died in the House of Representatives. A slightly extended version of the article was reprinted almost three years later, under the same title. See “New Copyright Bill Now before Congress.” Scientific American, Jan. 10, 1891. 17. Introduction 3 alternative ways people have thought about copyright in the past. What did they think copyright was, and what was its purpose? Was it property? Something else? How did it function? Who might it benefit? Who could it harm? To answer questions like these, I frame copyright, not as a series of legal statutes or cases, but as a collection of popular ideas and a cultural construct. One of the inspirations for this project was Jessica Litman’s “Copyright as Myth.” Suggestively, Litman observed that legal specialists assume that people understand what copyright is, and what it is for – an assumption that is not at all borne out by experience. Litman writes: Copyright law turns out to be tremendously counterintuitive; that is why it is fun to teach it, and why it can be such a good substitute for smalltalk and other species of cocktail party conversation. Part of the reason that laypeople (by which I mean lawyers and non-lawyers and authors and non- authors; indeed, everyone but the copyright specialist) find copyright law hard to grasp could be its mind-numbing collection of inconsistent, indeed incoherent, complexities. […] Although writers have suggested that members of the public find the idea of property rights in intangibles difficult to accept, there seems to be little evidence that members of the public find the idea of a copyright counterintuitive. Rather, the lay public seems to have a startlingly concrete idea of what copyright law is and how it works. This popular idea, however, has little to do with actual copyright law.2 Of course, it remains obscure just what people think copyright is. For me, this book is in part, an answer to this interesting question. The existing literature about copyright is vast, especially with 2 Jessica Litman, “Copyright as Myth” 238-239. 4 Pimps and Ferrets regard to specific legal aspects or aspects of contemporary copyright policy, but works with a historical focus are relatively uncommon. The few historical works available typically focus on events early in the history of copyright, beginning in the seventeenth and eighteenth centuries and extending no further than the landmark U.S. case of Wheaton v. Peters in 1834.3 A few others, instead of tracing the early history of copyright, seek to historically ground recent copyright changes.