• August 22, 2014

Yo, Ho, Ho, and a Digital Scrum

History shows that intellectual property is more complex than either its creators or copiers care to admit, says a Chicago scholar

The history of publishing is swimming with pirates—far more than Adrian Johns expected when he started hunting through the archives for them. And he thinks their stories may hold keys to understanding the latest battles over digital publishing—and the future of the book.

Johns, a historian at the University of Chicago, has done much of his hunting from his office here, which is packed so high with books that the professor bought a rolling ladder to keep them in easy reach. He can rattle off a long list of noted pirates through the years:

Alexander Pope accused "pyrates" of publishing unauthorized copies of his work in the 18th century. At the beginning of the 19th century, a man known as the "king of the pirates" used the then-new technology of photolithography to spread cheap reprints of popular sheet music. In the 1950s, a pirate music label named Jolly Roger issued recordings by Louis Armstrong and other jazz greats from LP's that the major labels were no longer publishing. A similar label put out opera recordings smuggled from the Soviet bloc.

Along with the practice itself, "pirates" in publishing just keep resurfacing, and Johns argues that the label is no accident. He sees it as the pirates' attempt to evoke romantic notions of seafaring swashbucklers. Sure, the copying done by culture pirates may be technically illegal, but they have long claimed the moral high ground, arguing that they are not petty thieves, but principled heroes rightfully returning creative work to a public commons by making free or cheap copies available.

"There is an association with a certain kind of liberty—living perhaps alongside the law rather than in direct opposition to it," Johns says. "What the pirate community can represent is a kind of alternative that has its own virtues."

Johns has collected these and other pirate lessons in a new book, Piracy: The Intellectual Property Wars From Gutenberg to Gates (University of Chicago Press). The weighty work, more than 550 pages, covers hundreds of years of history of copyright and intellectual property in the West, focusing on the stories of those angling to disrupt prevailing practices.

The codified rules and laws allowing an author or publisher to claim exclusive rights to a literary work—what we now call "copyright"—did not develop until the 18th century, long after the printing press was invented. And since then the notion has been challenged again and again—sparking controversy long before the latest disputes over the pirating of music, movies, and other material over high-speed digital networks.

Even the idea that books should be treated differently from, say, telescope designs took time to develop. So Johns also traces the rise of patent practices, adding stories of copying in fields of medicine, electronics, and more.

Johns, a mild-mannered British scholar known for crossing disciplinary lines and questioning assumptions is, however, no pirate himself—and said he long ago tired of what he calls "all of the yo-ho-ho stuff" associated with pirate lore. Nor is he calling for a world of open-source freebies. "I'm not pro-pirate or anti-copyright or intellectual property" is how he puts it. "I try to stay neutral."

But he believes that today's information revolution may be even more disruptive than the one Gutenberg set off with his printing press. If we listen to those pirates of old, we'll learn that there is nothing sacred or natural about our basic ideas of intellectual property, he argues, characterizing those notions as imperfect conventions formed in and by the Industrial Revolution. In fact, he suggests, it may be time to cast our models of patents and copyright overboard.

Adrian Johns grew up steeped in the ones and zeros of the new information age. As a teenager in a town just west of London in the early 1980s, he spent hours hunched over his Sharp MZ-80K, an early home computer, designing and building video games. While his classmates played football or chased girls, he started his own software company, called Cromwell Computing (named for the apartment building where he and his parents lived). He even enjoyed some success with a game called Minotaur's Cave, in which players navigated a crudely drawn maze to kill creatures and collect treasure—what is now an archetypal video-game scenario. "About six months ago," he says with a grin, "I woke up in the middle of the night and thought, I should have patented that!"

But he soon abandoned coding and the company to focus on his studies, heading to the University of Cambridge with plans to become a physicist. There he grew more interested in the history of science than in its practice, fascinated by just how messy the scientific process can be. As he had done with computer coding, he liked to break things down into their most basic components. He wanted to get beyond familiar truisms of the history of scientific publishing—such as the idea that journals popped into being in 1665 with fully formed conventions of how authors, editors, and publishers interacted—to track how such practices really evolved, including all the false starts and petty arguments over whether editors should be able to change text, and how to set up a business model of scientific literature.

That inclination led him to do something bold with his first major scholarly book, which started out as a history of scientific journals but ended up covering the history of the printed book. In it, The Nature of the Book: Print and Knowledge in the Making (Chicago, 1998), Johns challenged some dominant lines of thought about book history, arguing against the idea that the printing press had swiftly brought about a "print culture" with unique traits, like fixed and stable editions of works.

His argument is leveled at one scholar in particular: Elizabeth L. Eisenstein, a pioneer in the field of the history of the book who is now an emerita professor of history at the University of Michigan at Ann Arbor. Eisenstein has long argued that the printing press essentially led to the Renaissance, by allowing the dissemination of knowledge and easy consistency of book editions that were not possible in what she calls "manuscript culture."

But Johns argues that even after printing was established, stability was never guaranteed. Pirate editions of Hamlet, for instance, botched the play's most famous line as, "To be or not to be, Aye, there's the point."

In fact, he argues, the printing press led to some new kinds of inconsistencies. New printers hoping to cash in on popular plays sent people to write down dialogue from performances for unauthorized print editions. He focuses on the stories of the people who started given printing practices rather than on the assumption that the technology forced them.

Eisenstein and Johns debated each other publicly in 2002 in a point-counterpoint forum published in the American Historical Review, which has become legendary as a polite but sharp intellectual dispute—and led more people in the field to discover Johns.

"I just disagree with him fundamentally," Eisenstein says in a telephone interview, arguing that Johns tried to drum up a fight with her for professional gain. "He makes a mistake by starting with the contemporary book and looking back at the early modern book, instead of starting with the hand-copied book and going forward from there. He has not accurately portrayed how people in the 15th, 16th, and 17th centuries thought about printing," she says, pointing to evidence in her book that people of Gutenberg's era celebrated the printing press's ability to standardize texts. She attributes the flaws she sees in Johns's book to his sociological approach: "He's not trained as an historian."

Actually, he was trained in both history and sociology. Johns has held appointments in both disciplines—he was in the sociology department at the University of California at San Diego a few years before arriving at Chicago's history department, in 2001.

Some colleagues see his comfort in multiple disciplines as a key strength and say he brings a fresh take to the sometimes stuffy field of book history. Anthony Grafton, a history professor at Princeton University, says in an e-mail interview that Johns's first book is already a "classic," adding that "he's a good thing" for the field. Grafton declines to weigh in further, though, because he is writing his own review of Piracy and doesn't want to scoop himself.

When I ask Johns how he feels about shaking up book history, he laughs nervously. "That sounds too heroic," he says, removing his glasses. Others have made similar arguments in the past, he insists. "I'm not the only skeptic—I was more aggressive about it."

His new book is no polemic. But Johns does hope it makes a splash, this time in policy debates about intellectual property rather than in history journals.

Characteristic of the author, the book rejects typical boundaries. While some histories that sweep through hundreds of years simply erect a conceptual framework and plunk in a few stories to prove the argument, and others pick a narrow time frame and go deep, Johns manages to sail through hundreds of years of publishing history in several countries and still give an exhaustive account of piracy in each. He focuses almost equally on artistic works and scientific inventions. (A section on radio piracy inspired him to write another book, Death of a Pirate: British Radio and the Making of the Information Age, to be published by W.W. Norton this year.)

The downside: Piracy occasionally includes so much raw material that a sense of argument is lost.

It is packed with previously obscure but colorful characters, though. Like the so-called "pirate king" of England from the early 1900s, James Frederick Willetts. Well, that might have been his real name—he also went by several aliases.

Willetts is one of Johns's favorite pirates because he had the nerve to testify before Parliament defending his illegal sheet-music-distribution ring. "He got a certain grudging respect from the industry and some of the parliamentarians for this," says Johns. "Which of course didn't stop them from throwing him in prison."

The pirate king's argument: The country was experiencing a piano boom at the time, so a lot more families needed sheet music. But the major publishers catered to clientele who could pay 18 pence per song, while Willetts charged just two pence. Because the rightful owners had no hope of selling to the new audiences at those prices, Willetts testified, he did no harm to their businesses with his efforts—while bringing high culture and educational benefits to all. "Indeed, piracy might even increase the sales of the legitimate publishers, since it amounted to free advertising," Johns writes, summarizing the pirate's logic.

The last part of that argument could have been made today, except that now the debate involves digital downloads rather than musical scores.

The comparison is not lost on Johns, and his book briefly covers our digital era as well, which is where an enemy of sorts does emerge.

This nemesis is a shadowy collective rather than a person. Johns calls it "the intellectual-property defense industry," and says it emerged in the 1970s or so, in the form of trade associations and entities like the Interpol Intellectual Property Action Group. He sees these groups as remarkable in that they bring together ex-military and police officials, surveillance techniques, and data-scrambling to try to stamp out piracy and in some cases to limit reform, in unprecedented ways. "One could certainly track, and perhaps account for, the increasing consistency of intellectual property in the age of globalization by following this expansion of its practical enforcement across new regions and realms," Johns writes in Piracy.

If Johns were not married—his wife, Alison Winter, is also a history professor here at Chicago—with four small children, he would make his next project a ride-along with pirate police around the world to document their practices. "I don't think I can do it, just because I can't travel that much," says Johns, who is 44. "It needs somebody young and single to do it."

In the early days of printing, few legal restrictions kept ideas from crossing borders. Much more common were gentlemen's agreements regarding authors' and publishers' control of their work, Johns says. "In the 18th century, there were Swiss counts that reprinted books from France," he notes, "and it was sometimes seen by authors as scandalous, but it was not illegal."

That lack of clear laws led popular books to spread quickly from country to country, often without the authors' blessing but to the benefit of readers. "Knowledge therefore spread through chain reactions of reappropriations, generally unauthorized and often denounced," Johns writes. "Enlightenment traveled atop a cascade of reprints. No piracy, we might say, no Enlightenment."

This semester Johns is teaching a course on the history of reading, and it is standing-room only. On the day I visited, a few students in the 30-person seminar pulled in chairs from nearby classrooms.

The day's discussion focused on the history of page layout and how the book format developed. After a short lecture, in which he showed off a few props from his collection of old books of different sizes—including a book of psalms with postage-stamp-size pages—he opened the class up for discussion. Rather than direct the flow of conversation, he often let long silences fill the air until someone offered a thought. The silences never seemed uncomfortable, though, and sometimes he would break them with an idea that showed he had been pondering a previous argument by a student.

"He doesn't have an agenda or something that he wants you to say," says Kate Wulfson, a first-year history doctoral student in the class. "You get the sense he's taking you seriously and thinking about what you have to say."

She is searching for a dissertation topic, and most professors she has talked with have pushed her to choose some up-and-coming area, to increase her chances when she hits the job market. "People are so anxious about trends and what's going to be published—and right now it's the Middle East," she says. "But when I talked to Adrian about it, he was just so completely the opposite. He said there's no way to predict what's going to happen in six years. He said, 'Do what you think is interesting, and then other people will probably find it interesting, too.'" It has worked for him.

Near the end of class, the discussion turned to e-book readers like the Kindle, and someone wondered why electronic books were referred to as "content" by many in the computer industry. Why use that word? Johns seized the chance to teach one of his core academic beliefs: "Whenever you see some distinction like that, that seems very self-evident, attack it," he told the students. "Think, How did it come to that? How did that get advanced? and What controversies did it cause when it came to pass?"

Johns recently bought a Sony Reader, after several people asked him what he thought of e-reading devices.

"What it's really good for, it turns out, is reading 17th-century pamphlets," he says, showing off a copy of Gerrard Winstanley's "The Law of Freedom in a Platform" on his gadget.

"I can now have dozens of 17th-century tracts in here, and I can flip between them all very fast," he says. "And I think in some sense the casualness of that may get one closer to what it was like to be in a 17th-century coffeehouse where, spread out on the table in front of you, would be half a dozen different newspapers, a couple of pamphlets, a poem or two, and one or two manuscripts, and you would read them in a fugitive manner. So you'd drink your coffee, you'd read a couple of lines, and then you'd have an argument with somebody. And I think that, in a weird kind of way, this may get one closer to that kind of sensibility."

He is reluctant to talk about where he sees intellectual property going in an age when books become digital content. "The future is not my period," he jokes.

But when I press him, it becomes clear that he sees grand changes on the horizon.

"There's a deepening realization that the conceptual framework of intellectual property, which was defined in the Industrial Revolution, no longer fits with how we go around with our daily lives," he says. "The system of authorship that's existed in knowledge creation, in the sciences at least, seems to be in the process of being replaced by something that's much more like a system of flow than one of stasis."

In other words, books could soon be replaced by online documents that continue to be revised or updated, possibly by multiple authors who claim little or no ownership of the text.

Maybe copyright and patents should be scrapped, and whole new categories of intellectual property created. One category could be for mechanical inventions, one for genetics and other life sciences, one for analog creative works, one for digital books and movies. Or some other mix-and-match. "We might have a system of classification that would have more basic entities but might practically be a lot simpler, because it would correspond to existing ways of carrying on in the world," he says.

Mostly, though, Johns says we need to loosen up and be open to changes that fit new times and technologies.

That way, he hopes, copyright will be "less assertive of its own self-evidence—so it might be more flexible to change over time."

Not quite a pirate's argument, and, in fact, one that might shrink the pirates' market in the future.

Jeffrey R. Young is a senior writer for The Chronicle.

Comments

1. dteneyuca - February 22, 2010 at 10:44 am

Cultural Piracy

2. dank48 - February 22, 2010 at 12:30 pm

Cultural change. Like climate change, it's real. Like climate change, we're kidding ourselves that we really understand it, can control it, and know how things are going to turn out. Most of all, we overlook--as always--the fact that there are going to be all sorts of unforeseen consequences. By definition, we don't know what these will be.

But at least we're probably not expecting altruism from anyone.

3. cdwickstrom - February 22, 2010 at 01:07 pm

Somehow a Sony Reader just doesn't equate to sitting with Samuel Johnson in a London coffee house, and debating the tracts.

4. francishamit - February 22, 2010 at 01:25 pm

I've done quite a lot of work in copyright the past few years. I founded a blog called "The Fight For Copyright", testified as an objector in the Fairness Hearings in the Electronic Database Settlement in New York (at my own expense) and settled two copyright infringement lawsuits in my favor. Copyright is very complex amd is more an international law controlled by treaty than a national law, but the law in the USA is heavily weighted against small copyright holders like myself and the Federal Courts have demonstrated. time and again, that they do not want these very complex cases on their dockets. The law itself is Black Letter, but the details take a lot of time and effort to figure out. This year is the 300th anniversary of the first copyright law; the Statute of Anne, and it was inspired by a flood of unauthorized editions from printers in search of easy profits. Kant complained about the problem in "The Science of Right" in 1804. So the electronic copies are just the same problem with a lot lower cost of entry for the pirates. And lawsuits are not the answer for most people. It costs thousands of dollars to prepare one. In the USA your copyright must be registered with the Copyright Office and you must have damages of at least $75,000 to proceed, which you can only do in a Federal District Court. Little wonder then that most defendants feel free to ignore complaints from those whose work they've stolen.

There are criminal penalities in the law, but these only seem to get applied against small perpetrators, not major corporations. Federal law enforcement considers it a civil matter and chooses not the enforce these laws and such laws do not get you the money you are due. Little wonder then that most creators fail to register their work. Why bother when the playing field is so severely tilted against them?

We need reform but that can only come from Congress. The Federal Courts and the Depatement of Justice can only enforce the law as it is, and have shown a singular reluctance to do that.

You can, if you have a case of sufficent size to meet the treshold for damages, prevail. I did. It took four years, with an attorney who was willing to work on contingency and still cost several thousand dollars for filing fees, and this for a case that was settled at the first opportunity that never went to trial.

All the excuses that pirates offer for their crimes do not change the fact that this is stealing someone else's property. The cost of suit alone should deter them, but most people can't get there. The amount of the theft is less than the filing fees.

5. 11134078 - February 22, 2010 at 02:14 pm

The story says nothing about an entirely different sort of thing that today might often be considered piracy: borrowing of artistic content or themes. For instance, Handel was one of the great borrowers of music history. Whether or not he really said of the composers of his borrowed material, "Those pigs don't know what to do with it; I do," the remark, in and of itself, is straight to the point. In addition, there have been themes viewed as common property, each composer to do with it as best he can, just as there are lasting motifs in art. It is this sort of borrowing that is under ignorant attack today, for instance in attempts to prevent parody of the sort of creative borrowing that was so prevalent in the past. The 18th century music theorist Johann Mattheson said it was all right to borrow if you repaid with interest. Artistic interest, that is. That, too, is straight to the point.

6. 11134078 - February 22, 2010 at 02:16 pm

Sorry about the typo in the above. Line 4 from the bottom should read "xxx attempts to prevent parody or the sort xxx" sted "xxx attempts to prevent parody of the sort xxx"

7. jtarr - February 22, 2010 at 05:59 pm

<Comment removed by moderator>

8. tuxthepenguin - February 25, 2010 at 08:35 am

The following is a deeply flawed statement:

_Nor is he calling for a world of open-source freebies. "I'm not pro-pirate or anti-copyright or intellectual property" is how he puts it. "I try to stay neutral."_

Open source is not pro-pirate, anti-copyright, or anti-intellectual property. Open source began with software, and still primarily refers to software, though it has since been used in other contexts.

Open source is about the copyright holder allowing others to use the software they have written. The most important open source license (used for instance on the Linux kernel) is the GPL. The GPL imposes restrictions on the use and redistribution of the software. Without intellectual property laws, the GPL could not be enforced. Open source and piracy/copyright infringement have nothing to do with one another. Companies (such as Cisco) have been sued for violating the intellectual property rights of open source software developers.

Don't think it matters? Here's just one example where it does, and it could hit educational institutions in poor countries pretty hard. Large corporations are trying to protect their profits by telling lies about open source in order to pass laws that will eliminate competition:

http://www.guardian.co.uk/technology/blog/2010/feb/23/opensource-intellectual-property

9. mathbissette - February 25, 2010 at 09:34 am

Digital Revolution

People are already creating systems of classification in response to piracy in the digital age. Creative Commons Licenses are showing up all over the web. They are a popular alternative to expensive government copyrights.

http://creativecommons.org/

10. d_fevens - February 25, 2010 at 12:15 pm

--"The pirate king's argument: The country was experiencing a piano boom at the time, so a lot more families needed sheet music. But the major publishers catered to clientele who could pay 18 pence per song, while Willetts charged just two pence. Because the rightful owners had no hope of selling to the new audiences at those prices, Willetts testified, he did no harm to their businesses with his efforts?while bringing high culture and educational benefits to all. "Indeed, piracy might even increase the sales of the legitimate publishers, since it amounted to free advertising," Johns writes, summarizing the pirate's logic.--

Sounds like the same arguments Google & Company, and America are making today in their defense of their pirating.
--"Because a properly structured settlement agreement in this case offers the potential for important societal benefits, the United States does not want the opportunity or momentum to be lost." [United States of America, Statement of Interest, Page 4]

Douglas Fevens,
Halifax, Nova Scotia
The University of Wisconsin, Google & Me

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