I have been rereading the legislative history of the 1909 Copyright Act. I have come to the conclusion that 100 years ago we were smarter about copyright, about disruptive technologies, about intellectual property, monopolies and network effects than we are today. At least, the legislative hearings were much smarter. The hearings I am looking at took place in 1906 — thanks to the wonder of Google books you can read them yourself, if you are really nerdy.
There are lots of delights here. There is John Philip Sousa (yes, the one who wrote the march that forms the Monty Python theme music) popping up again and again to make his point.. So far as I can tell, he had a wild card from the chair to interrupt whenever it suited him.. viz.
The thing that Sousa (and some other American composers) and the music publishers were most upset about was the fact that copyright covered printing and public performance, but did not cover the mechanical reproduction involved in cutting a roll for a player piano or recording a disk or a cylinder for a phonograph or gramophone. Their goal was to get a new provision (section g) which would give composers (and thus publishers) the right to charge a royalty for these sound recordings. In strong opposition was the recording industry — which violently denied that the copyright holders should gain any share of the new market that (as they saw it) had been created out of thin air by technological innovation. To give copyright holders a veto over technology, they argued, would be fatal to the progress the Copyright Clause was designed to promote. As Larry Lessig points out in Free Culture (which has a superb chapter on this story) there is no small irony involved here, since this is the opposite position that the recording industry takes today (having secured their legal rights) when they face the new technologies of the Net. What’s more, the representatives of the recording and player piano industry believed that there was no harm being done to the composers by the mechanical reproduction of their music.
There were intense debates about the constitutionality of the legislation — piano rolls were not “writings” and restricting accessibility to them was not thought to promote the progress of science or the useful arts, and there were even debates about the correct way to conceptualize intellectual property rights…
There were discussions of whether intellectual property was the norm or the exception
And, my favourite of all, there were passionate attacks on the morality of the publisher’s position on the ground that it was the technologies and not the content, that had revolutionized music in the way the constitution envisaged, by dramatically expanding its distribution to the public, removing the bottleneck of the human who was required to translate musical score into listenable music.
That’s Philip Mauro of the American Graphophone Company — who later became a leading religious writer — and at the end he is striking the note that all the technologists did. The music publishers had a web of contracts in place with which they would create a “trust”, a monopoly, that would dominate music and restrict its availability to the public. As Mauro saw it, on the one side was the threat of monopoly, the squelching of innovation and the greed of the content owners, who were exploiting a misconception about the absolute quality of property rights. “All talk about dishonesty and theft in this connection from however high a source is the merest claptrap for there exists no property in ideas musical, literary or artistic except as defined by statute.”
I quote all this not because I agree with the record industry of the 1900’s — though I wish their representatives today were similarly sophisticated. I’d really like the RIAA to read Mr. Mauro’s speeches and see if it makes them change their minds at all about the disruptive technologies of today. I find no injustice in the composers getting a share of the revenues produced by sound recordings and piano rolls — I would have voted for it myself. And the solution to the problem of the latent monopoly — namely a compulsory license — accomplished that goal without stultifying the technology or restricting distribution to the public. All in all — the fulminations of Sousa and Mauro aside — it was a pretty nice piece of legislation. The legislators actually seemed to understand the arguments made to them. The conceptual confusions of absolute property rights were repeatedly debunked. There were explicit balances made in the statute — weighing technological progress and the encouragement of the arts and culture. Constitutional arguments were weighed and taken into account. They even saw and mitigated the threat of monopoly with a compulsory license. Nowadays when a compulsory license over, say AIDS drugs, is pursued by a country like Thailand, the US Trade Representative beats them up for adopting such “radical” and confiscatory approach. Nothing could be more foreign to the American tradition of intellectual property than compulsory licenses! Hogwash. Our music industry is built on them.
The world of 1906 was hardly perfect — I wouldn’t want to live then. And the 1909 statute was full of its own boondoggles and industry grabs. But if one looks back at these transcripts and compares them to today’s hearings — with vacuous rantings from celebrities and the bloviation of bad economics and worse legal theory from one industry representative after another — it is hard not to feel a sense of nostalgia. In 1900, it appears, we were better at understanding that copyright was a law that regulated technology, a law with constitutional restraints, that property rights were not absolute and that the public would not automatically be served by extending rights out to infinity.
Paul Bukhovko kindly provided a Belorussian translation of this page.