In a victory for media Goliaths, the Supreme Court recently ruled that TV-streaming service Aereo “perform[ed] … copyrighted works publicly” and therefore violated copyright law. The ghost of Grokster haunts us. Napster rolls in its grave. Copyright’s muscular hands have once again strangled innovation.
What is the purpose of copyright law? Conventional wisdom asserts that it protects the rights of authors, spurs creativity, fights plagiarism, and benefits the public as a whole. The Aereodecision, however, clearly benefits big media without advancing any of copyright’s ostensible aims. A look into the origins and intentions of copyright will demonstrate that this is neither a fluke nor a misunderstanding.
The roots of copyright lie in the soil of state-granted privilege. Invented in 1450, the Gutenberg printing press empowered writers throughout the Western world. Authors rejoiced, as their works could now be disseminated as never before. That included potentially seditious or sacrilegious works, much to the chagrin of the State.
To combat the threat, governments cozied up with publishing houses. In 1556 in England, the stationers’ guild became royally chartered as the London Company of Stationers. Along with the charter came a quid pro quo agreement. The company was entrusted with the obligation of “seizing, taking, burning … books or things … contrary to the form of any statute, act, or proclamation.” In exchange, it enjoyed an exclusive monopoly over the printing of all materials — old and new — throughout the kingdom.
Initially organized under the Roman Catholic rule of Queen Mary I, the Stationers Company spent much of its time censoring Protestant works. Upon Mary’s death and the crowning of Elizabeth, religious affiliations flip-flopped. The whimsical nature of the monarchy didn’t bother the Stationers, however. Both the company and the crown reaped the benefits of their insidious arrangement for decades. As University of Georgia law professor L. Ray Patterson puts it, “The power to burn offending books was a benefit to the sovereign (a weapon against unlawful publications), and a boon to the stationers (a weapon against competition).”
When Parliament became more liberal, it allowed the Stationers’ monopolistic privilege to expire. As a result, the Stationers became quite worried. No longer would they enjoy an obscene economic advantage.
Censorship to the point of book burning was not a high priority for the British government. Parliament ignored the Stationers’ initial pleas for statutory protection on the grounds of censorship.
The Stationers recognized that authors needed a publishing company. Dissemination of a work to any degree required a printing press, ancillary equipment, and substantial labor hours. The vast majority of individuals lacked the immense capital required to produce salable copies. With this in mind, the Stationers concocted the argument that authors should own the words and expressions they create.
The Stationers understood that authors eager for dissemination would sell their new property to publishers. Even so, it seemed like a liberal argument. Indeed, as Ludwig von Mises once wrote, “The program of liberalism, therefore, if condensed into a single word, would have to read: property….” Parliament accepted the Stationers’ new argument, and the first Western copyright law soon followed.