The Idealists
Page 5
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WEBSTER’S advocacy on behalf of the 1831 copyright law had once again helped to advance the notion that a book was a product just like a boat, to be bought and sold and protected by law, and that the production of literature should be a profession, rather than just an occasional pastime for men of independent means. But relatively few Americans were racing to ply this new trade.
The average American in 1831, if asked to list ten homegrown authors, would have likely responded with the names of Noah Webster, Washington Irving, and James Fenimore Cooper, followed by a long pause, followed by a quick change of subject. The writer David Leverenz noted that “monetary failure was the norm, for publishers as well as authors, especially for writers of texts not obviously ‘moral’ or ‘useful.’ Then as now, most writers tried, failed, and gave up.”76
American readers generally preferred the works of European writers to the relatively unsophisticated scribblings of their countrymen. This was partially because Europe’s books and authors were just better—or, at least, better known, which to most people has always been the same thing—and partially because the antebellum American publishing industry was insufficiently incentivized to nurture and promote domestic talent.
Since American copyright law did not protect those writers whose works originated outside the United States, publishers could sell foreign books for less than domestic titles. Multiple publishers would issue multiple editions of the exact same work, with a competitive advantage accruing to the firm that got its edition printed and distributed first.
The era’s book publishers often acted like rival tabloids competing to break news. When a ship carrying British texts arrived in port, the books were hastened by publishers to printing rooms, where gangs of compositors worked nonstop so copies could be produced. Once the book was published, it didn’t take long—days, occasionally hours—before competing American firms took that first American edition and used it to create their own unauthorized editions, which they sold for lower prices. European books were better, cheaper, and more abundant than American books. Homegrown authors just couldn’t compete.
It is important to remember, however, that the availability and affordability of these pirate editions engendered a book-reading public in nineteenth-century America, which would eventually engender a more mature publishing industry. In this context, what better served America and Americans? To give authors tight control over their works, so that they could realize more profit from their good ideas? Or to build a nation of readers by fostering the flow and dissemination of content? Was copyright a set of social relationships, or was it a simple property right? Even after passage of the Copyright Act of 1831, American lawmakers still weren’t sure.
Though Webster’s letters do not record his thoughts on the international copyright question, one can speculate on his opinions. Webster had spent his life establishing the parameters of an American-inflected English language that reflected native customs, idioms, and passions. But American literature would never truly reflect the country in which it was created unless authors could profit from their words. By the time of Webster’s death in 1843, this line of thought had become increasingly prominent, and the inadequacies of American copyright law had become increasingly clear.
2
A TAX ON KNOWLEDGE
In 1837, the popular nautical-adventure writer Captain Frederick Marryat came to America to do battle with pirates. Marryat had spent twenty-four years in the Royal Navy and had used his experiences as the basis for a series of exciting novels about life at sea. The books were widely read in the English-speaking world, and for them he was relatively well paid; for his 1836 novel, Mr Midshipman Easy, Marryat earned about £1,400, worth approximately £144,000 today.1 It was less than he thought he deserved, and Marryat blamed his publishers for taking “a lion’s share” of his sales receipts. “We all have our own ideas of Paradise,” he wrote, “and if other authors think like me, the more pleasurable portion of anticipated bliss is that there will be no publishers there.”2
In Marryat’s eschatology, surely a special section of hell was reserved for his American publishers, who could acquire his latest works at no cost and sell the reprinted copies for next to nothing. The American publishing industry was built largely on the backs of British authors like Marryat who were given no succor by federal copyright law. As the American publisher J. Henry Harper put it in his history of his family’s pioneering firm, “The Harper brothers saw an enormous reading public in a country of cheap literature, and an immense store of material at their disposition in England, more various and attractive than the home supply, and they resolved to bring the two together.”3
Nothing could be more simple. And to a foreign author, nothing could be more maddening. American publishers reportedly printed about half a million copies of Sir Walter Scott’s Gothic novels, but Scott saw no dividends from this bounty; he died a debtor in 1832, and his peers later argued that “an equitable remuneration [from his American publishers] might have saved his life, and would, at least, have relieved its closing years from the burden of debts and destructive toils.”4 In 1840, Charles Dickens estimated that the combined sales of his works in America had earned him less than £50.5 “I vow before high heaven that my blood so boils at these enormities that when I speak about them I seem to grow twenty feet high, and to swell out in proportion,” Dickens later wrote of the Americans’ indifference toward authorial compensation.6
Boil and swell as they might, foreign authors had little recourse against American literary piracy, though they sometimes tried to preempt it. Captain Marryat had even gone so far as to provide a Boston publisher with advance copies of Mr Midshipman Easy in exchange for royalties on their sales, but this plan was ruined when another, more prominent American publisher immediately issued its own unauthorized edition of the book.7
This effrontery galled the captain. His biographer, David Hannay, notes that “the question of money was a very important, sometimes a very pressing one, with Marryat,” and that, given the novelist’s expensive tastes and speculative imprudence, “it is not overrash or uncharitable to guess that his income was not always adequate to his expenses.”8 Some payment from his American publishers would help ease his financial burden. So Marryat sailed for the United States in the spring of 1837, primarily to tour the country and observe its manners and institutions in the style of Captain Hall, Mrs. Trollope, and other British literary travelers. But he also meant to extract some penance from the American reading public.
He fared poorly. When Marryat went to Washington, DC, to lobby for international copyright, a conversation with a populist Democratic congressman made clear to him that he was unlikely to succeed. “Your authors are very numerous—ours are not,” the Locofoco legislator told Marryat.9 “It is very true, that you can steal our copyrights, as well as we can yours. But if you steal ten, we steal a hundred. Don’t you perceive that you ask us to give up the advantage?”10 This piratical pragmatism was not easily refuted or engaged with, and Marryat left Washington convinced that “we shall never be able to make the public believe that the creations of a man’s brain are his own property, or effect any arrangement with foreign countries, so as to secure a copyright to the English author.”11
The solution, clearly, was for Marryat to disguise himself as an American author. The Copyright Act of 1831 applied only to authors who were “citizens of the United States, or resident therein.” But the law didn’t define the term resident, so Marryat attempted to obtain an American copyright for a new novel, Snarleyyow, on the grounds that, as a visitor to the United States, he was currently resident therein. The book was quickly pirated by publishers who simply ignored Marryat’s dubious argument. “Capt Marryatt [sic] has no more right to this work than we have,” wrote one bold Cincinnati publisher. American copyright was not an intrinsic right, but a creation of statute, and if Snarleyyow did not qualify for statutory protection, then it was fair game for all. The publisher was not about to be co
wed by “a Foreigner attempting to Prevent us from manufacturing Books that are and have been considered and acted upon as common Property.”12
Marryat gamely tried again, registering two more copyrights on the same basis, this time bolstering his claim to residency by formally declaring his intent to become an American citizen. But the US Circuit Court in New York questioned the sincerity of the captain’s declaration, reasoning that an actual aspiring citizen would not, as Marryat had, so proudly and consistently profess his allegiance to the empire he claimed to be forsaking. (Marryat’s true loyalties were most clearly revealed when, at a banquet, he offered a hearty toast to the brave crew of the British ship that had recently sunk an American vessel.)13 Marryat’s copyright application was denied and his claim to residency was rejected.
The rest of Marryat’s trip to America was similarly discordant. In his amusing foreword to the 1960 edition of Marryat’s Diary in America, Jules Zanger observed that before the “tactless and blundering” novelist returned to Britain, he “had been threatened by a lynch mob, had watched his books burned in public bonfires, and on at least two occasions had seen himself hung in effigy by angry crowds.”14 Much as the country’s legislators did not want to hear Marryat proclaim their copyright laws unjust, the country’s citizens did not care to hear that their cities were ugly, their table manners were crude, and that they spat too much. “What kind of man is Captain Marryatt [sic]?” the Baltimore Chronicle asked, already knowing the answer. “He is no man at all . . . he is a beast.”15
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OR, more accurately, he was an Englishman, both by nationality and disposition, and that explained much of the disparity. Britain in 1837 was a settled empire with an established class hierarchy, a mature publishing infrastructure, and no expectation that literacy would foster meaningful social mobility. The United States in the mid-Jacksonian era was a rustic nation, and poor. The Panic of 1837, which occurred during the administration of Jackson’s successor, Martin Van Buren, precipitated a seven-year recession that “engulfed all classes and all phases of our economic life within its toils,” as the historian Reginald McGrane put it.16 America’s cities were largely unvarnished and its vast interior was largely unplumbed; settlers drew sustenance from that which they could hunt, grow, or gather while avoiding wolves, sinkholes, disease, hostile natives, starvation, depression, and other hazards of the frontier. Transit entrepreneurs began to lay America’s first railways around 1830, but it took them years to build a reliable network and decades to build a transcontinental line. People traveled via horse, carriage, and inland waterways if they traveled at all.
For the average undercapitalized American, cheap books were the only books, which made the moral case for international copyright something of a hard sell—especially when it was made by citizens of a country that had recently burned America’s executive mansion and once tried to tax its tea. If copyright is a social relationship between producers, consumers, and the state, then the relationship that obtained in Britain was far different from its conception in the United States, “where all would be first, and every one considers himself as good as his neighbour,” as Marryat wrote in his Diary in America.17 The vulgar national habits that so repelled early nineteenth-century British travelers to America—the bolted meals, the cheap books, the “state of perpetual and disgraceful scuffle” that Marryat balefully noted—were a form of construction debris, generated by a Jacksonian public that had openly renounced the notion that they should toil in quiet obscurity as their betters determined what was best for them.18
“How many of the thousands among us who get the last novel of Bulwer, James, or Marryatt [sic], for the trifling sum of fifty cents, could make the purchase, if they had to pay one pound eleven shillings and sixpence, or seven dollars, as in London?” wrote the American publisher George Palmer Putnam in 1838.19 Though that sum was only so trifling because Bulwer, James, and Marryat weren’t paid for their work, many Americans argued that their countrymen needed culture more than the British authors needed money. In Diary in America, Captain Marryat attempted to characterize American legislators’ position on international copyright circa 1837: “It is only by the enlightening and education of the people, that we can expect our institutions to hold together. You ask us to tax ourselves, to check the circulation of cheap literature, so essential to our welfare for the benefit of a few English authors? Are the interests of thirteen millions of people to be sacrificed?”20 An author’s moral right to copyright in his works, populist legislators argued, could and should be superseded if doing so was in the public interest.
Seen from a modern vantage, this official ambivalence toward the sanctity of intellectual property is inconceivable. Today’s expansive copyright laws are weighted wholly in favor of content providers and are based on the idea of authors having a natural right to their creations, one that would exist even in the absence of statute. Even though the courts do not formally acknowledge a moral right to copyright in the United States, legislators clearly do: this is the only possible justification for copyright terms that extend far beyond even the longest possible authorial life spans.
But in nineteenth-century America, the concept of intellectual property was not yet sacrosanct—and the interests of readers were not inextricably bound to those of authors. In congressional chambers, lawmakers openly wondered whether international copyright constituted a tax on knowledge and compared literary property to industrial monopoly. American legislators were disinclined to impose this tax on knowledge, to enrich the rentier class at the expense of the laboring public. The nineteenth century was the first Golden Age of Free Content—and denizens of this current digital era would do well to study it, and how and why it came to an end.
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CAPTAIN Marryat was not the first literary Briton to try and fail to obtain copyright justice from the American people. A few months before Marryat sailed for the United States, a group of renowned British authors presented a petition to the US Senate enumerating the “deep and extensive injuries” inflicted on them by American publishing customs. The “only firm ground of friendship between nations, is a strict regard for simple justice,” the petitioners reminded the Senate, and nothing could be more simple or just than international copyright.21
In 1837, these arguments were taken up by Henry Clay, the loquacious and effective Kentucky senator—“Mr. Clay,” Marryat noted approvingly, “invariably leads the van in everything which is liberal and gentlemanlike”22—who subsequently introduced a draft of an international copyright bill into the Senate on the Britons’ behalf. “Of all classes of our fellow-beings, there is none that has a better right than that of authors and inventors, to the kindness, the sympathy, and the protection of the Government,”23 Clay informed the Senate upon receipt of the British authors’ petition. His colleague, the future president James Buchanan, responded by citing a group even more worthy of legislative sympathy: “the reading people of the United States.”24 Buchanan encouraged his fellow lawmakers to consider the effect an international copyright law might have “on the acquisition of knowledge in this vast country,” and his point proved insuperable. The petition was forgotten, and ultimately, so was the Clay bill.25
Buchanan’s concern for the welfare of America’s bookworms was laudable, but he likely had ulterior motives for making his statement. Philadelphia was home to some of the nation’s most prominent “pirate publishers,” who uniformly opposed international copyright; as senator from Pennsylvania, Buchanan was obliged to represent his state’s interests. In the international copyright debates of the nineteenth century, “the reading people of the United States” often served as a convenient rhetorical shorthand for “the publishers and tradesmen who profit from the production of cheap books.” What was said to be best for the former always seemed to correspond with what was inarguably best for the latter.
But just because Buchanan’s argument may have been insincere didn’t mean it was invalid. Though the absence of international
copyright certainly irked British authors, many ordinary Americans considered it a feature, not a bug; a serendipitous legislative lacuna that made it easy to acquire and enjoy the best—or, if they preferred, the worst—of world literature. The reprint copies weren’t always of the highest quality, but they were cheap and abundant and generally legible, and they helped create a reading public where once there was none. Since Noah Webster’s day, Americans had cherished the idea that they were free to improve their station through hard work and careful study. Education was the poor man’s ladder, and for many, cheap books were the rungs.
Periodicals were even more popular than books. The rise of the “penny press” had made newspapers almost universally affordable; the development of scoop-driven reporting and modern interviewing techniques showed the general public that newspapers could captivate. In 1820 there were 512 newspapers in America. By 1840, there were 1,404.26 These papers took advantage of improvements in printing technology—stereotype printing, which employed reusable metal plates; steam-driven printing presses—to reduce costs and increase production capacity.
But the era’s newspapers were rich with partisan vitriol and dubious information. The writer Kembrew McLeod has called the mid-nineteenth century the “Golden Age of Newspaper Hoaxes.” Occasionally, to boost circulation, America’s penny papers would blatantly invent fantastical stories. In 1835, for example, the New York Sun announced the discovery of horned goats and “man-bats” on the moon and rode the ridiculous tale to become the most popular newspaper in America, if not the world.27 In her recent dissertation, the historian Ann K. Johnson observed that “the very instability of information during this period created a desperate felt need for authority.”28 Works of fiction and history presented substantive and edifying alternatives to the ephemeral insults and scurrilities of the periodical press.