A Glorious Thing

Julie Peters

  • Piracy: The Intellectual Property Wars from Gutenberg to Gates by Adrian Johns
    Chicago, 626 pp, £24.00, February 2010, ISBN 978 0 226 40118 8

Bruce Sterling’s 1998 political thriller, Distraction, is set in the year 2044, and roving bands of land-based pirates have taken over the American hinterlands, swamps and roadways, armed with smoke bombs, high-frequency magnets (for scrambling computers) and superglue. The army is bankrupt, and the police force is disabled by corruption and general ineptitude. So – much like the 17th-century high seas – America’s highways are, de facto, beyond the law. It’s hard to distinguish between the homeless nomad ‘prole’ pirates and the military officers who set up road blocks and demand payoff to feed the starving troops. What has bankrupted the US economy is a different form of piracy. Several decades earlier, an intellectual property Cold War broke out, and the Chinese (who had never liked the idea of intellectual property) won. They put all books, music, movies, scientific formulae, pharmaceutical recipes and computer software up on their satellite networks, where they became freely accessible. The age of intellectual property was over. Makers of ideas would henceforth have to live on prestige alone.

In Adrian Johns’s account, intellectual property rights have always been precarious. According to him, the concepts of intellectual property and intellectual piracy arose as delayed responses to the advent of printing and the development of a commercial book trade, around the year 1660, in London. ‘To find the origins of intellectual piracy,’ he writes,

stand at the main door of St Paul’s Cathedral. Facing west, walk away from the Cathedral, heading down Ludgate and toward Fleet Street. After about a hundred yards you come upon a narrow alley … Entering the alley, the din of the traffic quickly fades, and you find yourself in a small courtyard. A doorway at the far corner leads into a building of indeterminate age with a stone façade. You pass along a brief, twisting entranceway and into an elegant antechamber. But then the passage suddenly and dramatically opens out, leading into a vast, formal hall. It is richly decorated with 17th-century panelling and arrayed flags, all illuminated by stained-glass windows portraying Caxton, Shakespeare, Cranmer and Tyndale. You are in Stationers’ Hall, the centre of London’s old book trade. And here, beyond all the elegant joinery and ceremonial paraphernalia, lies the key to the emergence of piracy. It sits quietly in a modest muniments room. It is a book.

The book is the Stationers’ Register, a ‘heavy manuscript tome of some 650 pages, bound in vellum’. By entering a title in the register, a stationer laid claim to the sole right to publish that title: not legal copyright as we know it, but a guild right generally protected by the Stationers’ Company. ‘Major historical currents, critical to the development of modernity, converged on the book that still sits quietly in its chamber just down the road from St Paul’s.’

Piracy defied the claims inscribed in the Stationers’ Register and did so with increasing flagrancy, spreading across borders (to the wilds of Ireland and America, for instance), and ignoring the old world of genteel trade courtesies. It may have emerged in tandem with the legally defensible intellectual property rights that came into being at the beginning of the 18th century, in response to a rapidly expanding readership and a culture of inventors eager to exploit commercial possibilities. But, Johns argues, ‘the law of what we now call intellectual property has often lagged behind piratical practices.’ Most of its central principles were developed to fight piracy. ‘To assume that piracy merely derives from legal doctrine,’ he writes, ‘is to get the history – and therefore the politics, and much else besides – back to front.’ The word may have described a practice – and eventually a legal violation – but it was primarily an accusation: a perception of intellectual outlawry at a moment when cultural capital seemed to be up for grabs. It is not a coincidence that the golden age of Caribbean buccaneering – the later 17th and the 18th centuries – coincided with the rise of both intellectual property and intellectual piracy. ‘Piracy’ in the intellectual sense is driven by the idea that there are dangerously stateless enemies of property, sailing across boundaries with impunity. The concept feeds on fears that uncivilised ruffians may breach our borders, infiltrate our homes, and rape our women or our software programs. Captain Hooks of another sort.

Piracy sets out to debunk this myth, among others. We are inclined to see intellectual property as one of the principal foundations of modernity: a set of privileges on which modern thought built a commercial base that fuelled the Industrial Revolution, produced ‘culture’ as we know it, and today supports the information society in which we live. Pirates – historically, as now – thus seem to undermine not merely a set of commercial privileges but modernity itself. However, as Johns shows, the Enlightenment that produced modern concepts of intellectual property was itself produced by texts disseminated by piracy. Rather than threatening creative thought (along with intellectual property), piracy fostered the revolutionary philosophies that lay at the base of modernity. The world ‘in which medicines were faked, counterfeited and pirated without limit, was also the world in which medical patenting became routine. It was inextricable from the world hailed as enlightened, because it was at its heart the same world.’ No piracy, no Enlightenment.

For every proponent of intellectual property who helped create the landmark copyright and patent cases of the 18th century, there was a shrewd opponent who saw such property as indefensible privilege, allied with a set of archaic monopoly rights and standing in the way of free trade. For them, copyright raised prices and limited popular access to ideas, stunting invention. With perpetual property, they warned, the bookseller who owned Newton’s Principia could, in effect, own science, and stall its progress for ever. ‘All our learning will be locked up in the hands of [the booksellers], the Tonsons and Lintots of the age,’ Lord Camden explained, ‘till the public become as much their slaves, as their own hackney compilers are.’

The power that the intellectual property regime gave to trade privileges, at the expense of royal privileges, seemed to degrade the nobility of literature and ideas. This was the view held, for instance, by Sir Samuel Egerton Brydges, antiquarian, forger, embezzler and (as Johns writes) a ‘self-deluding impostor of extraordinary proportions’. Brydges spent much of his life composing unremarkable sonnets (about 2000 a year as he got older) while trying to prove (on extremely slight grounds) his right to the title Baron Chandos of Sudeley. The rest of his time he spent in a struggle against copyright in the name of genius. In Brydges’s view, copyright rewarded those who pandered to the masses, leaving real talent to founder. Authorship, in this regime, was prostitution: ‘a mere piece of dull mechanism’ dedicated to producing ‘vulgar stories suited to feeble intellects’. It created a public addicted to steam-printed periodicals, and to keep up with these required one to live in London – a place that was death to genius.

The engineer, arms manufacturer, inventor and industrial ‘wizard’ Sir William Armstrong, who fought for abolition of the patent regime (exploiting others’ inventions when he could get away with it and fiercely protecting his own), explained his view in 1863 in Darwinian terms:

As in the vegetable kingdom fit conditions of soil and climate quickly cause the appearance of suitable plants, so in the intellectual world fitness of time and circumstances promptly calls forth appropriate devices. The seeds of invention exist, as it were, in the air, ready to germinate whenever suitable conditions arise; and no legislative interference is needed to ensure their growth in proper season.

In much the same style as Johns’s earlier The Nature of the Book: Print and Knowledge in the Making (1998), Piracy records the history of intellectual freebooting through a series of anecdotes populated not only by eloquent opponents of intellectual property but also by a collection of highly entertaining inventors, pretenders, dreamers and other rascals. Take the two enterprising brothers Francis and George Moult. In the early 1690s, Nehemiah Grew invented a means of deriving salt from the ‘spa waters bubbling up in the outskirts of London’, long known to have healing properties, and set up a factory for the production of what came to be known as ‘Epsom salt’. The Moults initially tried to buy the recipe from Grew. When that failed, Francis tried to bribe Grew’s production manager. When that too failed, he set up an illicit plant and he and George produced enough spa salts to swamp the Irish, Scottish and English markets.

When Grew discovered this project, he protested, on the one hand, that the Moults had stolen his recipe, and, on the other, that their salts could not be the genuine article and might even be dangerous. In defence of his product, Francis Moult had the gall to take Grew’s Latin tract on the subject and translate it as A Treatise of the Nature and Use of the Bitter Purging Salt. Easily Known from all Counterfeits by its Bitter Taste (1697). Grew’s friends denounced Moult as an ignorant ‘Shop-Chymist’ with ‘an ill Mind’ whose ‘scurvy Libel’, full of errors and omissions, not only wronged the author but imperilled the king’s subjects. In the end, there was no lawsuit. The Moults’ salt empire grew.

Round One for piracy. In fact piracy seems to have won more rounds than it lost. For instance, in the later 18th century, there was a craze for mechanical automata: the ‘orrery’, a device designed to display the Copernican system in motion; a ‘microcosm’ (a six by ten-foot Roman temple, with a working model of a carpenter’s workshop, landscapes with moving figures, and musical automata); a writing android (representing a two-year-old child) with a quill and ink, which could write whatever spectators dictated; clockwork people that sighed as they played melancholy music; clockwork ducks that ate and defecated. As these proliferated, so did their imitators, pirating the toys as quickly as they could produce them. The inventors sued, to no avail: mere mechanical devices, the courts said – the work of trade artisans, unworthy of special patents.

Patents did develop for devices of all kinds, but there were plenty of ways around them. In 1817, the Scottish evangelical naturalist and editor David Brewster filed a patent for an optical instrument he called the ‘kaleidoscope’. But the craftsman he had hired immediately took the instrument to a variety of London ‘tinmen’ and ‘glaziers’, who began producing their own versions, and Brewster’s complaints were unavailing. Alexander Theophilus Blakely, a Royal Artillery captain, took out a patent for a rifled cannon in the 1850s. He approached Sir William Armstrong with a proposal to build one to his specifications and subject it to military trials. Armstrong declined, and proceeded to manufacture his own almost identical cannon, taking out a patent with trivial differences and then claiming that dormant patents like Blakely’s blocked his own experiments.

Artisans and manufacturers could always exploit ideas whose inventors did not have the wherewithal to defend them. But 20th-century technologies gave rise to a new counter-cultural form of piracy. In the 1920s, with the rise of wireless radio, the British government required all listeners to take out licences, at the risk of being prosecuted as ‘pirates’. A London radio aficionado called Robert Ford began taunting the government with his illegal unlicensed radio listening. The government was initially reluctant to prosecute, but eventually his home was searched, his radio was found, and he was arrested. He insisted on being jailed, proclaiming himself ‘the first individual in history … to be imprisoned as a result of the use of one of his five senses in his own home’. He later produced a long treatise on the subject, culminating in a Gilbert and Sullivan-style comic opera portraying the postmaster general as the pirate king, looting the good ship El Publico and its peaceable radio-listening passengers.

A blind child in Virginia, Joe Engressia (a.k.a. ‘Joybubbles’), figured out how to whistle crucial tones into the telephone receiver in order to make free calls and play tricks on the system. In the 1960s, he put other phone ‘phreaks’ in touch with one another, helping to create an alliance that became the basis for the first amateur computer networking not long afterwards, and eventually blossomed into the vibrant culture of hacking.

Johns cites the familiar chorus from The Pirates of Penzance, ‘And it is, it is a glorious thing/To be a Pirate King!’ on his dedication page, and it isn’t inappropriate given the implicit defence of piracy that unfolds over the course of the book and the spiritual affinity between his work and that of the early print pirates: copious, exuberant and a little carefree when it comes to historical consistency. For instance, his limited definition of piracy – anything contemporaries chose to describe that way – is essential to his assertion that piracy was born in the later 17th century in the wake of the invention of printing (he doesn’t have much to say about the 200-year timelag between the invention of printing and the rise of piracy in the later 17th century). His claim that piracy emerged only with the language of piracy – the transfer of the seafaring term to intellectual theft – allows him to dismiss early accusations of intellectual theft that look a lot like piracy: Galen’s complaints about books falsely attributed to him, or Quintilian’s protests against the unauthorised circulation of his work, or Vitruvius’ attack on writers who ‘steal’ other writers’ works and circulate them under their own names, or the First Folio’s condemnation of ‘stolne, and surreptitious copies, maimed, and deformed by the frauds and stealthes of injurious impostors’. These, according to Johns, were not piracies because no one called them ‘piracy’ and ‘there was no perception of a legal or commercial violation.’ These are surprising grounds for dismissal given Johns’s claims elsewhere that the perception of legal or commercial violation was only an after-effect of piracy, not its defining feature.

This confusing definition of piracy is at once too inclusive and not inclusive enough. On the one hand, Johns’s historical examples are not broadly defined by the word ‘piracy’, so by his definition they should, theoretically, be excluded. On the other, his definition allows him to count all manner of things as piracy: unrestrained capitalism, for instance, or the economics of colonialism, or Yippie anarchist phone phreaking, or computer hacking (not for gain, but just for the fun of it). If Sir William Armstrong was a ‘pirate’ because he exploited other men’s inventions, or Abbie Hoffman because he advocated linking outlaw radio and television stations through unpaid telephone lines to form a nationwide ‘people’s network’, why not those who sold unauthorised copies of Quintilian’s books, or the literary ‘thieves’ to whom Vitruvius referred, or the ‘injurious impostors’ who sold ‘maimed and deformed’ copies of Shakespeare’s plays?

It is easy, however, to forgive Johns’s occasional historical contradictions and historiographic equivocations, and his rather meandering and prolix style, because his expansive history bears so powerfully on questions about the rapidly changing present. What is going to happen, for instance, to art and ideas – and their makers – in a world in which a song is no sooner played than ripped off, a book no sooner published than blazed across the internet? Distraction may read like speculative fiction, but the vision it offers of a world without intellectual property seems not just probable but inevitable. In fact, it’s already here. Nearly 12 billion movies were illegally downloaded in 2009 on sites such as the Pirate Bay or RapidShare or Hotfile. These sites are no sooner shut down than a dozen new ones emerge in their place. It takes a few hours for the most popular American television shows and films to appear on Chinese internet television stations such as Youku.com and Tudou.com. And it’s not China or Eastern Europe against the West, or mainstream media companies against outlaw renegades. Most pirated streams or download links are jumping with pop-up ads: Netflix, Atari, Sony Entertainment, Universal Music, Paramount Pictures – subsidising their own demise. Efforts to pursue the offenders can look like Keystone Kops productions: Swedish police raided the headquarters of the Pirate Bay in 2006, seizing the servers, routers, switches, CDs and fax machines and forcing the young techno-pirates to cease and desist. Three days later, the Pirate Bay was back, happily streaming its media.

The stories Johns tells – of the 18th-century makers of knock-off automata, the kaleidoscope tinmen, the Moults, Armstrong, Engressia – substantiate the implicit claim in his subtitle: rather than magisterially expanding its domain over its 350-year history, intellectual property has been locked in a bitter battle with piracy, in which neither side can claim a monopoly on enlightened ideas. As Johns moves from the late 17th to the 21st century, what is most striking is how brief and fragile the life of intellectual property has been. The concept may seem natural to us but it is only a few hundred years old, has been under continual assault, and may be at an end. With the advent of the internet, Johns writes, the ‘link between credit and property that had been forged in the 18th century was … broken’, destroying ‘the nexus of creativity and commerce that … prevailed in modern times’, and threatening to ‘foment a crisis of democratic culture itself’.

Crises of democratic culture aren’t all bad, of course. On the one hand, the imminent near total victory of piracy over property may destroy just about the only means by which writers and artists can make a living (not to mention software and pharmaceutical research companies, inventors of all sorts). And it may mark the end of the publishing, music and film industries as we’ve known them. On the other hand, it may not. In what could be seen as either a gesture of solidarity with pirates worldwide (reminiscent of Abbie Hoffman’s Steal This Book) or a promotional gimmick, the University of Chicago Press offered a free one-day download of Piracy. At the same time, it was, perhaps, a way of mocking the prophets of doom.