Without Copyrights: Piracy, Publishing, and the Public Domain

Robert Spoo

This is a book about the periphery, the elusive point at which law and piracy traded places, legitimacy became lawless, and courtesy grew discourteous.

Without Copyrights: Piracy, Publishing, and the Public Domain

Publisher: Oxford University Press
Price: $25.00
Author: Robert Spoo
Length: 384 pages
Format: Hardcover
Publication date: 2013-08
Reprinted from Without Copyrights: Piracy, Publishing, and the Public Domain by Robert Spoo (footnotes omitted) with permission from Oxford University Press. Copyright © Robert Spoo 2013. No part of this excerpt may be reproduced or printed without permission in writing from the publisher.


Growing the American Public Domain

All this chaos and uncertainty, all these feuds and enmities, have one and the same cause,—the existence in the world of a kind of property which is at once the most precious, the easiest stolen, and the worst protected.

—James Parton (1867)

Late in September of 1918, a miscellaneous troupe of actors—some professionals, some rank novices—launched a series of performances of George Bernard Shaw’s Mrs. Warren’s Profession for audiences in Zurich, Switzerland. The actors called themselves the English Players. They had been assembled, in part, to assist in promoting British culture during wartime, and they performed Shaw’s controversial play in English, without permission from the playwright. A year later, with the dust of war still settling in Europe, G. Herbert Thring, secretary of the Society of Authors in London, wrote to chide the English Players for mounting the play without Shaw’s consent and without paying him any royalties. The unauthorized production and the troupe’s evasiveness were creating “a very bad impression” on the Society of Authors, Thring warned, and the society was considering pressing “legal claims to the utmost.”

Thring’s menacing letter found its way to James Joyce, cofounder of the English Players, but Joyce was a hard man to intimidate. Instead of hastening to placate the society, he responded with a string of legal theories designed to excuse the alleged outrage. First, he coolly hinted that there could be no enforceable rights in a play like Shaw’s, whose indecency had caused the Lord Chamberlain to deny a license for its public performance in Britain. Second, he claimed that the production of English-language plays on the Continent was “an exceptional case not foreseen” by the Berne Convention for the Protection of Literary and Artistic Works, the agreement that governed copyright relations among many nations. Performing the play in Switzerland was “free” because the Berne Convention did not expressly forbid such an act. The most Joyce would concede was that his company might have given the appearance of infringing “literary courtesy.”

The tables turned seven years later when Joyce, now a victim of piracy himself, was treated to uncannily similar defenses by Samuel Roth, a New York publisher who had begun reprinting unauthorized magazine installments of Ulysses in July 1926. Roth told Joyce’s lawyers that Ulysses was “not copyrighted” in the United States and was therefore “the property of anyone wishing to use it.” At that time, America was still isolationist in copyright matters, a tainted wether of the international flock, prevented by its hyper-formalistic laws from joining the Berne Convention. The 1909 U.S. Copyright Act, which determined what was and what was not protected within the borders of the United States, specified that, to enjoy full copyright, foreign works written in English had to be reset, printed, and bound on American soil within a fixed number of days after they had been published abroad. Works like Ulysses that suffered from the stigma of immorality often failed to find a legitimate publisher in time to satisfy these requirements, known collectively as “the manufacturing clause.” The penalty was loss of copyright. Perversely, copyright and obscenity statutes worked at cross purposes in this respect: books that vice crusaders sought to ban from circulation could more easily reappear under the imprints of unauthorized publishers simply because one of the chief restraints on promiscuous distribution—the authorial monopoly conferred by copyright—had been withheld by federal law on technical grounds. Joyce in 1919 and Roth in 1926 each appealed to the law to justify their doubtful activities. Copyright codes, they argued, authorized their unauthorized acts.

Around the time that Thring’s accusatory letter reached Joyce in Zurich, Roth in New York mailed off a check for $500 to Edwin Arlington Robinson, whose long poem Lancelot had won the cash and a promise of publication in a contest arranged by Roth through the Lyric Society. The donor of the prize had reneged, so Roth made good the $500 out of his own pocket. The gesture was characteristically flamboyant, a combination of generosity and showmanship. He was a romantic when it came to his literary passions, a determined disseminator of the authors he loved. Several years later he realized another of his dreams by reprinting Ulysses, though his reward would be to wear a scarlet “P” for the rest of his life.

Roth, too, learned what it was to be pirated within the law. During a sojourn in London in 1921, hungry and low on funds, he visited the office of The Jewish Chronicle in the hope of selling some articles. The editor, who had previously reprinted Roth’s contributions to the American Jewish press without permission or compensation, looked him in the eye and told him it was the Chronicle’s policy never to pay for what it could get for nothing; once Roth’s new articles appeared in the States, the Chronicle could freely reprint them with the blessing of British law, which, given America’s non-Berne status, granted no automatic protections for the published writings of U.S. citizens. Roth was shocked by “the discourtesy of this indecent old reprobate and his piratical magazine.” Later, he looked back on the encounter as a sort of primal scene foreshadowing his own lawful depredations. Like the old editor of the Chronicle, he admitted to using “a great deal of matter in the public domain” during his long career.

This is a book about the convergence of lawful piracy and transatlantic modernism within what I call the American public domain, a vast, opportunistic literary commons assembled from the legal have-nots of foreign authorship and reflecting the protectionist policies of a developing nation in quest of instant and assured culture. Created by U.S. copyright laws, the American public domain was nothing less than an aggressively legislated commons, an invitation to piracy that served the interests of domestic publishers, typesetters, printers, binders, and the book-buying public. For the first century of federal copyright protection and well into the twentieth century, the American public domain grew daily through the influx of new works by foreign-domiciled authors. By operation of the law, these works were claimed, immediately or soon after they were issued abroad, by a preternaturally premature, or forced, commons.

One of my goals is to reframe literary piracy and its role in modernism within an accurate understanding of copyright law and the realities of publishing in the period. The typical and uncritical use of the term piracy—detached from the legal conditions that permitted and even encouraged it—gives a false aura of illegality to a practice that, though inconsistent with strict business morality or what was then called “the courtesy of the trade,” was a lawful form of cultural diffusion well into the twentieth century. Joyce’s retaliatory campaign to discredit Roth for exploiting Ulysses was a continuation, by other means, of the traditional extralegal sanctions of trade courtesy, but it was not the upbraiding of a violator of the copyright law. What Joyce brashly asserted concerning Shaw’s play in Zurich—that it was free for common use—was really true of Ulysses in the United States. This study seeks to disentangle the coarse weave of the rhetoric of piracy as used by modernism’s contemporaries as well as by today’s commentators and to reveal piracy’s role in transatlantic modernism. My use of the term pirate varies from context to context, sometimes denoting a breaker of the law, at other times indicating a deviant from courtesy or a transgressor of other informal norms. Context gives the appropriate coloration; I have avoided intrusive glosses of my every use of pirate.

The story I tell concerns the disseminative conditions of transatlantic modernism, the practice and rhetoric of lawful piracy, the counter-rhetoric and retaliations of its outraged victims, and the courteous code by which some publishers justified exploiting the free booty of the American public domain. My methodology combines traditional legal and literary history with an intense focus on the particular rules of U.S. copyright law as they affected foreign-domiciled authors. I bring to bear the discourses of law, economics, protectionism, and piracy as they were produced in the nineteenth century and were carried over, in familiar and altered forms, into the twentieth. My perspective is sociolegal and interdisciplinary, historical in mood, narrative in style, and grounded in three decades of literary and legal study and more than a decade of practicing and teaching copyright law. My accounts of law and courtesy are woven from many archival sources, including the recently acquired Samuel Roth Papers at Columbia University, documents uncovered in New York court archives, the litigation file preserved by the law firm that represented Joyce in his 1927–28 lawsuit against Roth, and materials located in a score of other libraries and private collections throughout the world.

Chapter 1, “The American Public Domain and the Courtesy of the Trade in the Nineteenth Century,” explores the founding rules of a protectionist copyright law that openly encouraged the unauthorized reprinting of new foreign works, generated frenzied competition for those free resources, and set in motion a counter-practice of self-restraint among American publishers that came to be called the courtesy of the trade. As a way of regulating ruinous competition for unprotected titles, and to give themselves an aura of respectability and fairness, the major publishers adopted trade courtesy whereby, in its simplest form, the first publisher to announce plans to issue an American edition of an unprotected foreign work acquired informal title to that work—a kind of makeshift copyright grounded on tacit trade agreements and community-based norms. Drawing on the insights of scholars of social norms and common-pool regulation, I offer a detailed account of nineteenth-century courtesy and its regime of entitlements, exceptions, and penalties. Courtesy restored a fragile order to the publishing scene by imitating the main features of copyright law and permitting both publishers and authors to benefit, though inconsistently, from the wholly informal exclusive rights recognized by this self-interested chivalry.

Chapter 2, “Transatlantic Modernism in the American Public Domain,” moves into the twentieth century and traces the same forces—copyright law, legalized piracy, and trade courtesy—as they shaped the production and consumption of modernism in the United States. Here I show how the dreaded manufacturing clause and other strict formalities of U.S. copyright law, persisting from the previous century, claimed works by many foreign-domiciled authors for the American public domain. The stringent law and the high costs of American printing combined to drive such writers as Ezra Pound to publish in Europe and thereby to sacrifice their U.S. copyrights. The fear of failed copyrights lay behind many developments of modernism, including Pound’s editorial work for The Little Review and The Dial, foreign authors’ efforts to place their writings in American magazines and to print special limited editions of their works, and the role of the New York lawyer and cultural patron John Quinn in building a legal infrastructure for the transatlantic avant-garde in America.

Chapter 2 also introduces Samuel Roth as a central figure in the unauthorized production of modernism in America and traces the quiet persistence of trade courtesy among other American publishers, such as B. W. Huebsch and Bennett Cerf. A variety of legal and social pressures had caused courtesy to decline from its extrovert prominence in the nineteenth century, but it continued on in the new century, more an ethical assumption of doing business than a boasted badge of probity. An echo of the old courtesies can be heard in Joyce’s halfhearted assurance to Thring that, though the English Players had violated no legal rights, they wished to avoid the appearance of transgressing “literary courtesy.” Roth’s protest over the “discourtesy” of the editor of The Jewish Chronicle likewise alluded to an ethical impropriety that did not rise to outright unlawfulness. Courtesy was a voluntary affirmation of moral solidarity with authors and fellow publishers. To operate outside of courtesy was to declare oneself dead to the higher ideals of the trade. Deviants from the practice were branded as pirates, a second-order piracy that could leave a permanent stain on a publisher’s reputation. Roth never fully recovered from Joyce’s campaign to fix him as an unscrupulous thief beyond the courtesy pale.

Ezra Pound hated literary piracy, lawful or unlawful, and was a sworn enemy of the copyright-defeating technicalities of U.S. law. For decades he railed against statutes that “favour[ed] the printer at the expense of the author.” Although he thought Roth was a “bloody crook” for reprinting uncopyrighted works without permission, he considered “the American copyright law... a worse crook than he is.” The law made the man, Pound thought, and Roth was merely a symptom. Chapter 3, “Ezra Pound’s Copyright Statute: Perpetual Rights and Unfair Competition with the Dead,” traces Pound’s detailed proposals for copyright reform and his rigorously ambivalent attitudes toward authors’ legal rights and disseminative piracy. At the very moment that the English Players were presenting Shaw’s play to Zurich audiences without a license, Pound was publishing his proposals in the London weekly The New Age. His program for reform envisioned the granting of strong authorial entitlements—indeed, he urged a perpetual copyright—but at the same time he worried over the power that such entitlements would place in the hands of authors and their heirs. His solution was to install various checks and balances that would enable publishers to reprint authors’ works without permission if authors or their heirs failed or refused to keep works in circulation. Pound’s idea of a literature without borders, a utopia of fluid international communication, existed in conscious tension with his desire to fortify authors’ rights and to combat literary piracy.

Chapter 4, “Ulysses Unauthorized: Protectionism, Piracy, and Protest,” tells how U.S. copyright law forced Joyce’s masterpiece into the American public domain within months of its publication in France in 1922. The chief reason for the book’s unprotected status was Joyce’s inability to comply with the 1909 copyright act’s manufacturing clause. The law’s willingness to trade protection for protectionism enabled Roth to use his Two Worlds magazines as a force for diffusing an archly eroticized version of modernism in a country bound by moral prohibitions and conventional reading habits. Here and in the following chapter I discuss Roth’s reprinting of Joyce, T. S. Eliot, and Pound and show that the international protest over Roth’s Ulysses piracy, organized by Joyce and his supporters, employed one of the familiar penalties of trade courtesy: the ritual ostracism of a violator of informal publishing norms. Pound’s refusal to sign the protest was not a personal crotchet, as Joyce liked to believe. It reflected instead a principled distaste for pillorying an individual who was acting in conformity with an admittedly objectionable law and who in any case was circulating a great work that had frightened off other American publishers. The law, Pound thought, not its inevitable product, should have been the focus of Joyce’s organized army of protesters.

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