I’ve had these notes kicking around my desktop for a few weeks and just got around to typing them up into a cohesive post.

I’ve an avid participant of Harvard Law School’s Berkman Center’s Tuesday Luncheon Series. On February 27, author Matthew Pearl gave a great talk on copyright in the nineteenth century; I have reordered and summarized the content, though you can listen to the full audio. Through analysis of the writings and motivations of numerous 19th century authors, publishers and tradesman, Matthew Pearl carried an interesting theme: the intellectual property rhetoric of pirates and thievery was pure artifice until the rhetoric itself was codified as law, or still in some cases, not.

The mid-ninteenth century was a heady time for American publishers and a frustrating one for authors. The United States, while having domestic copyright law protecting the literary rights of American authors, had no International Copyright provisions. The works of foreign authors–British especially, because they were English language–could be printed or altered without royalty or the permission of their writers. The works of Charles Dickens, or Anthony Trollope, could be freely printed in America, and they were. Publishing agents would eagerly wait at the docks of Boston for transatlantic clippers to arrive with the newest novels to then reprint. The publisher Harper & Brothers , today HarperCollins, was the most notorious and proud of their unapproved additions.

The free-spirited atmosphere created by a lack of international copyright affected both foreign and domestic authors. Foreign authors did not receive royalties on books printed in America; the content was also sometimes modified from the author’s original text. Domestic books, by such authors as Mark Twain, Walt Whitman and James Fennimore Cooper, sold less because the prices were undercut by non-royalty paying foreign novels.

At this time the authors often banded together in copyright clubs or leagues to protest. James Russell Lowell, noted poet and president of American Copyright League penned this motto:

In vain we call old notions fudge,

And bend our conscience to our dealing;

The Ten Commandments will not budge,

And stealing will continue stealing.

This motto, in the same vein as many other pro-copyright writings, is interesting because of the themes it calls up. Notably, it evokes a traditionalist past implying that there was a time when literary property was respected. The motto also refers explicitly to stealing, yet at the time, there did not exist a legal framework of infringement. Indeed, courts at the time stated that there existed no common-law for the protection of literary works

In the same vein, Rudyard Kipling published the Rhyme of the Three Captains, a long and complicated poem literalizing the theft of one of his books by Harper. Kipling moralizes the episode with the serious line “Does he steel with tears when he buccaneers? For God then why does he steal?” One reviewer even goes so far as to call them “book-aneers”.

Other works contained similar ideas of constant, instantaneous and expected crime. Edgar Allen Poe’s Purloined Letter concerns a crime that is completely in public view. Charles Dicken’s Martin Chuzzlewit is about the “false commerce” of America.

But authors, while protecting their writings, had a tightrope wire to walk with themes very American: democracy, class, culture and slavery.

Royalty-free novels made possible, for the first time, “railway station” editions that could cheaply purchased by the general public. In the past, only library quality editions could be purchased by those who could afford their high costs. Restoring high prices these could viewed as keeping knowledge or betterment from the masses. Additionally, the growth of the publishing industry was fueled by cheap foreign novels, and to be against them placed authors as elitists above the working class typesetters and bookbinders.

At this time there did not fully exist the concept of the sanctity of a creator’s work. English books were often Americanized, removing British language or themes and replacing them with more American counterparts more easily understandable or acceptable to American palates. Twain’s A Yankee in King Arthur’s Court is the archetypal American meddling with high British romance: invading, changing and ultimately destroying it.

Disallowing the modification of works was even viewed as imposing a slavery of words. When Harriet Beecher Stowe went to court to prevent an unauthorized German translation of Uncle Tom’s Cabin, she was named a hypocrite by some in calling for the emancipation of the negro yet shackling her novel.

Charles Dickens, on his two visits to America, was viewed with much animosity by the American public. On these visits he called for an international copyright but was derided as only seeking greater profits for himself.

Indeed, authors went to great lengths to not fall too heavily on either side. Walt Whitman’s Leaves of Grass contains a very measured call for stronger protections. Mark Twain, in a confusing episode before the U.S. Senate, gave strange or contradictory answers. James Fennimore Cooper would outright lie when asked about having signed petitions.

Despite all of this, there was created by authors a wholly successful fictional narrative superimposed on an actual legal regime. Today’s concepts—and laws—of copyright infringement, piracy, robbery and thievery are based upon these artificial metaphors and themes. At the time no laws existed to make the actions of publishers such as Harpers illegal, but rhetoric, poems and stories were created until a legal framework could codify them.

To learn from these episodes Matthew Pearl makes this important point:

It is easy for us to forget that at one point there existed the need to craft the rhetoric of “a shadow copyright regime”.

Today, it’s difficult for us to notice how we adjust the rhetoric, for better or worse, in the popular conceptions and legal framework of ownership and copyright protection. And when taking into account concepts like Fair Use, noticing that conceptions may be just rhetoric.