implicated not only those who wrote illicit books but also those who, when discovered in possession of them, refused to provide information about the author. The Statute of Anne, Greene argues, expedited almost universal regulation: “It did so not by inventing new means of tracking down authors but instead by encouraging authors, in effect, to give themselves up voluntarily.”15 When the statute was later used as a model for other copyright legislation, including in the United States, this precarity of authors’ rights remained.
Property and the US “Copyright Clause”
The significance of material property in the history of copyright—what I have discussed as a close relationship between exclusive rights to manufacture text and exclusive rights to produce stuff (such as windmills, dumplings, or salt)—is evident not only in certain colonial arrangements, including those that benefited John User of Massachusetts, but in the original language of the US Constitution. As an outcome of the Constitutional Convention’s deliberations in the summer of 1787, much of which centered on strategic protections of individual property, the so-called copyright clause connects copyrights with patents. Article 1, section 8 of the Constitution affirms that “Congress shall have Power [. . .] to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their Respective Writings and Discoveries.” Not surprisingly, the exact meanings of “promote,” “progress,” “useful,” and “limited times” have given legislators heaps of trouble. The latter is especially vexing, and later in this chapter I discuss the continual extension of copyright terms throughout the twentieth century. Suffice it to note here that the language recommended by the Congressional Committee of Detail not only links science (including knowledge and inquiry generally) with useful arts, which in that time must be thought of as artisanal and craft based, but also contextualizes the protection of material property (such as land) alongside the protection of what would later be called “intellectual property.”16 When Congress acted on its constitutional authority by passing the 1790 Copyright Act, it protected individuals’ rights to such useful intellectual property as “maps, charts, and books.” Simply put, making stuff and knowing stuff are protected by the same constitutional clause, which emerged in a discussion of property as a source of power.17
During the politically and culturally formative years of the United States from 1790 to the Civil War, copyright was relatively small in scope. Many of the printed works that circulated did so without copyright. In some cases the texts were translations of English or French works, to which the 1790 act did not apply. Other texts were adaptations or abridged versions of a more well-known story or play, which were likewise permissible. Some authors simply did not seek copyright for their works since, as Meredith McGill notes, restrictions on the already difficult distribution of printed text were imprudent for authors wanting to reach a wide audience.18 In other words, copyright was subordinate to the goal of publicity. In her study of “reprinting” culture in the antebellum period, McGill argues that the circulation of unauthorized reprints stimulated a culture consistent with the nationally budding republicanism. She explains that a “belief in the inherent publicity of print and the political necessity of its wide dissemination [. . .] stressed the interests of the polity over the property rights of individuals.”19 This point sets the stage for my analysis in important ways, dissociating proper name authorship and ownership from the motives of a circulation network. In the context of decentralized production of print and a general commitment to public access (including a free press and public education), McGill suggests, the proprietary connection between authors and their works was secondary. The link between a text and its identified owner was less important that the impact that the text’s circulation might have on an emergent community with text at its center. Successful authors sought exposure more than exclusive rights.
In the twentieth century the link between authorship and private ownership became the center of copyright policy debates, particularly in efforts to establish appropriate time periods of privilege. A series of copyright laws gradually extended the reach and duration of copyright. In the original 1790 act, the term of recognized privilege was fourteen years, with a single renewal option for another fourteen years. The 1909 revision of this act doubled down, extending the term to twenty-eight years with the option to renew for an additional twenty-eight. The major revision in 1976 extended the term to cover the life of the author plus fifty years. Furthermore, that this act protected “unpublished works” meant that producers of content need not register their creations with a central agency. Any idea captured in fixed form is covered by copyright. This automatic proprietary status still applies. In 1998 the Sonny Bono Copyright Extension Act changed the length of time to be added to the author’s life from fifty years to seventy years. In the same year the Digital Millennium Copyright Act, inspired by the World Intellectual Property Organization, sanctioned so-called digital risk management tools that control access to copyrighted materials.20 Criminalizing any attempt to circumvent such tools, Congress confirmed the legality of organized efforts to police copyright infringement using integrated digital mechanisms.21 A year later Eric Eldred, who had been publishing literary works from the public domain in an online library called Eldritch Press, filed a complaint contesting the constitutionality of the Sonny Bono Act. As a result of the Sonny Bono Act’s extension of copyright terms, Eldred’s press would not be able to publish anything more recent than 1923 until 2019.22 In 2003 the Supreme Court ruled against Eldred, confirming the constitutionality of the 1998 act. After this major statement regarding the Court’s interpretation of congressional authority to secure authors’ rights, a decade of intellectual property legislation followed that buttressed the legal ownership of text.
A Confluence of Developments
When studying on the one hand the legal regulation of copyright and, on the other, the idealism of digital activists like Eldred, one is prudent to consider three developments in confluence from the 1970s onward: first, the passing of laws and rendering of judgments that protect private ownership, the most important of which I have previously chronicled; second, the development of information infrastructure and technologies, including the end-to-end design of the internet, the popularization of the World Wide Web, and eventually low-entry platforms for creating content (including blogs and social media); and third, the commercial governance of software in the 1980s, resulting in a movement for open access.23 The last of the three merits a bit of commentary here insofar as it served in the late 1990s as inspiration for Lessig and the Creative Commons team.
As a language that allows people to communicate with computers, source code can be either opaque or transparent. The reason to keep it opaque, or secret, is generally commercial; proprietary code may be thought of as a trade secret. Transparent code, or open code, means that anyone can peek inside the machine. The peeker can not only discover the code that operates a program but take parts of it, modify them, and use them for new purposes. Richard Stallman, a legendary coder at the Massachusetts Institute of Technology, founded in 1985 the Free Software Foundation, whose agenda was to advocate for open software.24 The foundation developed the general public license (GPL) as a way to enable open code to remain open in multiple iterations. Simply put, use of a code covered by the license was required to be, reciprocally, open. If I peek into your code and turn it into something new for my own purposes, I have to render that new code open, just like yours. “Free” enters the picture as a consequence of the license’s insistence on openness in perpetuity. Open code is free insofar as it remains open.25 And free does not mean “available at no cost.” Stallman’s much-quoted adage is helpful here: “Not free as in free beer, but free as in free speech.”26 Of lasting importance within the digital commons, and for my purposes here, is that the GPL contained an ethic of use. Out of the open access software movement grew a public argument favoring free access not just to programming code but to cultural, artistic, and scientific content. This more general open access movement, in which the Creative Commons is a vocal participant, mobilizes concepts like “copyleft” and “free culture” politically.27 The open access movement’s advocacy must be seen in light of the theory of authorship and creative invention that the movement endorses, as well as that theory’s
