I have been watching the Google lawsuit and settlement talks play out over the years, and with each announcement, mostly in favor of Google, I went from anger and disbelief, to confusion, and now to a glimmer of understanding of how writers could find themselves not quite owning their own work. I stumbled across this insight while reading Robert Spoo's book on how copyright protections (or the lack of them) affected the introduction of modernist literature in the United States, with a focus on Ezra Pound and James Joyce.
Without Copyrights: Piracy, Publishing, and the Public Domain, by Robert Spoo (Oxford University Press, 2013)
I came across this book by accident. When I picked it up in a local library after being drawn in by the title I expected something that would seem relevant to me as a writer grappling with the changing environment for commercially and self-published writers. The challenges facing writers opposed to Google’s digital copying program are nearly overwhelming, and I was stumped to understand why courts found it so easy to rule against writers and in favor of Google and others. I still don’t understand completely, but I have a better understanding of how we got where we are and why Google has been successful so far.
Robert Spoo, well recognized in his chosen field of copyright law and literature, is interested in how copyright laws, or the lack of them as we understand them today, interacted with modernism in literature. He takes for his example the writer James Joyce, and his attempts to have an unexpurgated Ulysses published in the United States.
Spoo’s history of copyright in this country is an eye-opener. Writers often talk about books in the public domain as though they had drifted into this ocean as a result of neglect or the passage of time or creation by the US or state government. But the public domain was in fact created by Congress through earlier copyright laws to ensure that those involved in the book business in this country had work here and didn’t face competition from outside the country. The only books that received copyright in this country were those that were printed and bound here, manufactured here; all others, no matter where they were published or by whom, were in the public domain. Once in the public domain, which occurred within a very short time after publication elsewhere, the book was fair game for anyone who wanted to publish it here. Writers who published abroad could gain a copyright here if they met stringent requirements, but otherwise the copyright failed in the US. This was the case well into the twentieth century.
Publishers who wanted to publish work by someone who had already published it abroad faced the Wild West of publishing for decades. In response to this chaotic world they developed something called the “courtesy of the trade,” or “trade courtesy.” This phrase referred to a gentlemanly agreement among the larger, more established publishing houses to let the first to claim the work to have it. If Publisher X announced through a magazine ad or in some other way that he was going to publish the work of a popular British poet, his colleagues left him to it. The trade courtesy was an understanding among publishers to not poach on others’ writers from their publishers, and to not try to undercut other publishers with cheap reprints. None of this was legally binding, and no one could stop another publisher who ignored the unspoken rules.
A publisher who ignored the rules was called a pirate. The term is not accurate because the publisher operating outside the rules of trade courtesy wasn’t breaking any law, but some felt so strongly against what he (it seems mostly a he) was doing that the term was used freely. Publishers who wanted to get ahead published anything that wasn’t protected by copyright, which meant almost everything published overseas. One of the more famous of these publishers was Samuel Roth, who hoped to publish James Joyce’s work, especially Ulysses.
A publisher who published with no regard to the gentlemanly agreements of others faced no legal repercussions but plenty of social costs. He was shunned and subjected to unrelenting negative gossip and boycotting, others published cheap work to undercut his prices, and writers might sue to get any monies they could extract. Public opprobrium could drive a publisher out of business.
Into this topsy turvy world came Ezra Pound and James Joyce. Joyce bitterly resented anyone taking his book and publishing an altered version, one cleaned up for the censors. Pound believed in disseminating literature, and in the end chose that over Joyce’s right to control his publishing in its entirety. When we think of Joyce’s lawsuit to get Ulysses into the US, we think he was challenging the prudish laws of the US. But in fact, Joyce first sued Roth for using his name for advertising without his permission. Joyce sued for damages he felt he must have suffered by not having control of his work, but in the end Joyce and Roth settled by agreeing to a consent decree (dated December 27, 1928). But even this had a very limited effect. This decree, according to the author, and despite Joyce’s grandiose claims, “has not been cited by a single court in a reported case” (p. 224). Joyce thought this decision would give authors their natural moral rights in the ownership of their labor, echoing Locke and European attitudes, but US courts and legislation have never gone this far (p. 225).
The second step in getting Ulysses safely into the US, where Joyce’s preferred publisher, Bennett Cert, could publish it, was to have it seized by Customs. Once this happened, the book was subject to the Tariff Act of 1930, and the Cutting amendment. This amendment made the object confiscated the defendant in a case, and forced the government itself to defend its actions. The sender and the receiver of the item in question, in this case Ulysses, were not part of the case. During Prohibition, according to Spoo, lawsuits were often filed against the truck carrying bootlegged liquor and the like.
Ulysses was confiscated, the case went to trial, and Judge Woolsey decided in favor of the book, in 1933. The book was free to enter the US, but it was still without copyright. Joyce’s great work was now subject to the trade courtesy practices that he and others abhorred, but he had no choice.
This is a story of stunning twists and turns and surprises in getting Ulysses published in the US, not the least of which was Joyce’s attitude towards his lawyers’ bills (he refused to pay them).
Equally surprising to me as a writer is that copyright as I have come to understand it only became law in 1976. Legislators have continued to tinker with copyright law so that even now the public domain is occasionally given a great book and deprived of another for a few years. It is a patently crazy system. The US didn’t sign the Berne Convention until 1989, when the US finally agreed to recognize foreign copyrights and afford works so protected overseas the same protection in the US. There is more, but by now you should have the idea that the history of copyrights in the US is anything but tidy and linear.
The text is dense, but the writing is free of academic jargon, in some cases delightful. The author makes every effort to explain the legal niceties in simple, clear language. I learned more about Ezra Pound and James Joyce in this book than I ever did in college English literature classes. Highly recommended.