The copyright wars have flared up anew. In the 1990s, rights owners seemed ascendant. Intellectual property was folded into the international trade system, with strict global enforcement against piracy. Terms were extended yet again—now generally well over a century long. Rights owners won new legal and technological protections.
But in retrospect, this was the last gasp of copyright's old regime.
Digital technologies, which then were only just taking off, have meanwhile undercut whatever certainty owners thought they had won. However draconian the sentences imposed on teenage downloaders, however shrill Hollywood's anti-piracy trailers, however blustery Gene Simmons's defense of Kiss's royalties, the world has changed.
Digitality is a double-edged sword. It can be used to lock every byte behind paywalls. But for every digital padlock, there is a hacker willing to pick it. And worse, the audience's attitude has changed. The downloaders and increasingly the general public ever less see the evil in demanding easy—sometimes free—access to the digital smorgasbord.
The tide has turned in the new millennium. The Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA) anti-piracy bills, though backed by Hollywood, were defeated in 2012 as Wikipedia shut down in a day of protest, bringing homework to a grinding halt worldwide. Also seeking to clamp down on unauthorized downloading, the Anti-Counterfeiting Trade Agreement (ACTA) bill died in the European Parliament the same year. Pending appeal, the Google Books project was given a new lease on life last November—hailed by Judge Denny Chin as transformative fair use, not the piracy conjured up by the publishers' and authors' lawyers.
These are today's skirmishes, but the copyright wars between owners and the public in fact extend back almost three centuries. A look at their history suggests that the claims of rights holders and authors have reached their limit. A course correction to copyright's ever-longer, ever-stronger protection is imminent.
Although its role recently has been that of IP globo-cop, America was born a pirate nation. It adopted the short (14 years) terms of British law in its first copyright law of 1790. More important, it refused to grant foreign authors protection.
Convinced that a fledgling nation, eagerly building its cultural infrastructure, would be best served by having the Old World's heritage freely on tap, America's founders not only shamelessly pirated European culture, but also proudly hailed their pilfering as pursuit of the Enlightenment ideal of an educated democratic citizenry.
The outcome was an abundant cultural cornucopia, stilling the hunger of the world's then largest literate public. Vast American editions of European works cost a fraction of their Old World price. So inexpensive were books that they were often bought for a train ride and discarded.
Every major American city had its own edition of Byron. By the 1890s, Macaulay's History of England, available even in small Colorado towns, had sold ten or twenty times as often as in Britain. Dickens was serialized on the back of railway timetables. "It seems to be their opinion," complained Arthur Sullivan (of Gilbert-and-Sullivan fame), "that a free and independent American citizen ought not to be robbed of his right of robbing somebody else." America was, quite simply, the China of the day.
The audience's concern for cheap and accessible works took such precedence over the claims of authors and owners that not until 1891 did the United States finally recognize international copyright. Even then, it took another century, until 1989, for America grudgingly to join the Berne Convention, the main international copyright union.
In contrast, America's subsequent change of course, from pirate to policeman, was the outcome not of fervent public opinion for stronger authorial rights. Rather, it testified to the content industries' growing influence.
Having earlier been a cultural importer—consequently a pirate—by the late nineteenth century, America began exporting her works. Uncle Tom's Cabin, the international blockbuster of 1852, had British sales thrice the American. But without international copyright, Harriet Beecher Stowe and her American publisher reaped no benefit.
By the turn of the century, with the first swells of the American cultural tsunami soon to wash over the world, the U.S. cultural industries, especially Hollywood, increasingly strove for effective, global copyright. They pushed for American membership of the international treaties, for stronger protection and for stricter enforcement.
With Hollywood and the other content exporters firmly behind long and strong protection during the twentieth century, why might the tide now turn in our own day? In the 1800s, those opposed to copyright and concerned instead to ease the audience's access were joined by those publishers who specialized in reprinting foreign works, thereby sidestepping royalties. Only as America developed its own exportable content and became culturally self-sufficient, did the disseminators' economic interests pivot in unison to support copyright.
But today fault lines have opened up once again within the disseminating industries that promise open access activists a firmer foothold than just their idealistic concern for the public domain. Civil war has broken out in California. Hollywood's content producers have been challenged by Silicon Valley. For the Bay Area's high tech industries, freely available content is what lures consumers to buy their devices and services. However mercenary their own immediate interests in accessibility, tactically they are aligned with open access.
History also suggests a more immediate example of what the ongoing copyright wars might bring. When sound recording techniques—phonographs and their predecessors—first arrived in the late nineteenth century, the law protected only sheet music, as the sole way of (indirectly) reproducing music. The new technologies could therefore reproduce content as they pleased.
Composers and their publishers were incensed. But by the time legislators passed laws, in the early twentieth century, the recording industry and its audience was too big to be ignored.
Composers and publishers received some rights: a royalty set by statute for each recording. But once they had permitted a piece to be recorded, they could no longer prevent anyone else from doing so too. Though compensated for their property, at rates determined in law, they lost most other control.
Composers and their publishers were effectively expropriated in favor of the new manufacturers and their consumers. Ironically, the industry that today most loudly laments digital pilfering on its turf was built a century ago on the legal evisceration of sheet music. But if sheet music was not sacrosanct property in 1909, why should digital recordings be so today? What the law gives, it can take away.
Copyright is unlikely to return to the limited scope of the Founding Fathers’ enlightened vision, in service foremost to the public domain. But we do seem to have reached its point of maximum extension.
At the least, copyright is unlikely to continue expanding endlessly in length and strength. Today's open access activists stand in a venerable tradition of rejecting excessive protection for rights owners that gripped America from its birth throughout the nineteenth century. For once they stand a chance of prevailing.
Cultural historian and UCLA and NYU professor Peter Baldwin is the author of The Copyright Wars: Three Centuries of Trans-Atlantic Battle, published by Princeton University Press.