I’ve been going in circles about copyright, intellectual property, and the role of history in debating them. I started a post yesterday about the protests against SOPA and PIPA, in which major Internet sites (including Wikipedia, Google, and Wired.com, among others) and countless personal sites have shut down or curtailed their operations to protest the two bills currently being considered by Congress. Each would grant new powers to the federal government to monitor and control information posted online, including the power to block domain names based on copyright infringement claims.

But before I could get very far on that post, I read of the Supreme Court’s 6-2 decision in Golan v. Holder that allows the federal government to take works that had moved into the public domain and place them back under copyright protection (Justice Kagan recused herself, presumably because the case was working its way through the courts while she was Solicitor General).  The logic of the majority, by the way, is to require the federal government to meet obligations it made to hew to international copyright treaties to which the United States is a signatory, but of course the decision’s impact goes far beyond foreign works.

If you haven’t yet read the Supreme Court’s decision in Golan v. Holder (available here in PDF), take a look. The majority opinion, authored by Justice Ginsburg, is, as Yoni Appelbaum (@Yappelbaum) noted on Twitter, a “narrowly legalistic opinion for the Court.” It used historical evidence, to be sure, going back to the original 1886 Berne international copyright convention. But it delved no further, and did not explore the deep background of copyright law in the United States. The Breyer dissent (concurred by Alito), by contrast, digs all the way back in Anglo-American jurisprudence to the earliest copyright statutes in Great Britain (in 1710). Breyer has a very good account of the development of copyright in the eighteenth century, both in Britain and America. Here’s a representative paragraph:

Yet, as the Founders recognized, monopoly is a two­ edged sword. On the one hand, it can encourage produc­tion of new works.  In the absence of copyright protection, anyone might freely copy the products of an author’s creative labor, appropriating the benefits without incur­ring the nonrepeatable costs of creation, thereby deterring authors from exerting themselves in the first place.  On the other hand, copyright tends to restrict the dissemina­tion (and use) of works once produced either because the absence of competition translates directly into higher consumer prices or because the need to secure copying permission sometimes imposes administrative costs that make it difficult for potential users of a copyrighted work to find its owner and strike a bargain.  See W. Landes & R. Posner, The Economic Structure of Intellectual Proper­ty Law 68–70, 213–214 (2003).  Consequently, the original British copyright statute, the Constitution’s Framers, and our case law all have recognized copyright’s resulting and necessary call for balance.

Copyright has always been meant to protect the rights of producers — though crucially in the eighteenth century, copyright usually resided with publishers rather than authors. The Statute of Anne, in fact, was part of a regime that protected the monopoly of the Stationers’ Company of London. As Sarah Arndt points out, the monopoly was limited to England; Ireland (and Dublin in particular) became the publishing piracy capital of the British Atlantic. The colonies also lacked firm copyright law, but almost no printers (which is to say, Benjamin Franklin and nobody else) had the capacity to publish books; they imported from Britain and Ireland (see Richard Sher’s Enlightenment and the Book and volume 1 of A History of the Book in America, The Colonial Book in the Atlantic World for full details).

As it happens, the eighteenth century history of copyright and censorship provides two good case studies for efforts to protect artistic productions and government limitations of publications.

First, there are unintended consequences even to well-meaning legislation in the realm of publications. For a moment, take the British view of the Stamp Act, what would have been the largest effective restriction on print publication ever in British colonial America. Coming out of the Seven Years’ War, Britain was saddled with unprecedented debt, a new and very young king, and an unstable domestic political environment. To pay down the debt, Parliamentary ministers explored all sorts of options; asking colonists to pay a little more in taxes seemed unproblematic to them (for obvious reasons). England’s printing trade had operated with a Stamp Act since 1712, and several of the colonies (notably New York and Massachusetts) had passed temporary stamp taxes to fund the war effort in the 1750s. What could possibly go wrong?

Well, printers (as I argue in my research) saw it as a massive threat to their businesses and many colonists saw it as a threat to free and open political communication. Printers turned their publications into forums for protest, publishing essays against the Act, following protests, and organizing to lobby for its repeal and nullification. When November 1, the planned effective date of the Act, rolled around, presses across the colonies went silent in protest. Some printers, like William Bradford, publisher of the Pennsylvania Journal, melodramatically eulogized their newspapers. Merchants organized boycotts of British goods. And in thirteen of Britain’s colonies, the law was nullified (it took effect in Canada and the West Indies). By spring, Parliament repealed the law (with an assertion of its power to boot). I’m not predicting that there will be a second American Revolution, of course, but if Congress passes a tax on china, glass, and painters’ colors in a few years, all bets are off.

The second lesson is that copyright law in the United States originated in an environment that envisioned a free market for foreign works. Congress passed a copyright law in 1790 to cover new works in the United States—and as Breyer and Alito note, it did not cover foreign works. Noah Webster pushed hard for the law because of the massive success of his speller. He had spent years  traveling through the states trying to sew up copyright in each to protect his publication from piracy. For foreign works, the standard remained that whoever got there first stood to make a profit. For the most popular author of the early republic, Walter Scott, Mathew Carey made a deal with Scott’s London publisher to get access to the text first. Was there a better solution to solving the question of works copyrighted abroad? Almost certainly.

Putting modern debates into context is important. Laws restricting the circulation of information and publications have not been warmly received. Copyright has been an instrument to limit that circulation. And lastly, it was never intended to be permanent or retroactive. (Though, like many others, I doubt I will live to see the day when Mickey Mouse (first copyrighted in 1928) enters the public domain.) Understanding the background of copyright law and censorship helps us to understand both the law and the protests against it.