as dean indicated, both of us and a large number of legal scholars you might be surprised to learn are interested in not the law that is areas in which something that is not compelled by law, something that is very organized has grown up to fill various needs and various cracks in the walls of the law. i'm going to be talking about one of the laws of the 19th century in the united states and particularly on the authors and publishers in america really from the 1820s and 30s up until the end of the century where you will see it's really kind of turned upside down when publishing is concerned.

lawful privacy was still regarded as piracy to b createdt it was lawful. on copyrighted works were protected by an informal system of rights that were recognized by publishers. how could this be? the answer lies in some of the mysteries of informal norms that exist alongside of the law sometimes even in place of the law in a very fascinating for me, and i know for the dean area particularly international or transatlantic which is what i am focused on. as inhabitants of the digital age we usually think of the word pirate as the violator of a formal legal rights, copyright, patent, trade secret. the specter of widespread piracy is hovered behind much of the feverish lawmaking that we have had starting from the premise,

the digital technology if left unchecked would destroy incentives to produce intellectual property. congress enacted the digital millennium copyright act of 1998 with its expansive protections for authors including management operation. the committee summarized the band prevailing trend in b's words due to the ease with which digital work can be copied and distributed worldwide virtually instantaneous copyright owners hesitate to make the work readily available the internet without reasonable assurances they would be protected against massive piracy. now, that phrase i said piracy refers to the violation of legal rights and the 19th century which is my subject today also condemned piracy of copyrighted

works. but running alongside of this sense of piracy was another meaning of the word. the unauthorized copying of works that were not protected by copyright in the united states or by any other law. this seemingly paradoxical usage was mostly reserved for attacking american publishers, the printers who took advantage of congress' refusal. as for domestic use of the word private to describe the reprinting of unprotecte an prod foreign literature became more intense as the century wore on and the call for congressional action to protect the non-us authors grew more strident. he expressed lack of protection for the foreign authors and works have been written into the law as early as our first federal copyright act of 1790. this was the very first statute that our congress post

constitution enacted for copyrights. nothing shall be construed to prohibit the importation or vending, reprinting or publishing within the united states of any map, chart, book or books written or printed or published by any person, not a citizen of the united states in foreign parts or places without the jurisdiction of the united states. quite simply americans were encouraged to reprint, publish or sell foreign works without the permission of their authors were foreign publishers. it could have resulted in damages and fines along with forfeiture into structured of infringing copies. over the course of the 19th 19th century19thcentury cover congred

the rights and remedies of american authors, but continued to withhold protection from foreign authors although the u.s. patent law on the other hand was friendly again for various reasons. a revision of the copyright law sharpened the text that i just read for you from 1790 to stress that no copyright protection existed for any person, quote, not a citizen of the united states or residence within the jurisdiction thereof. they extended the legal disability of the foreign authors to include any dramatic or musical composition print, cut and grieving or photograph so as they came in they were also stripped of their protection for the foreign authors during the 19th century accusation19thcentury accusatiof

the foreign works often carried a double edged shifting meaning. on one level the critics might be assuming the particular american publisher responsible for an unauthorized reprint on another level, the critics might be attacking congress for the nation itself for failing to protect foreign authors sometimes they blur the target picking it unclear if it is the moral failing of businessmen is more to blame. some critics distinguish more sharply between legislative and individual responsibility. though he was a strong advocate of international copyright, samuel clemens, mark twain conceded in testimony before the senate subcommittee in 1886 that it was wrong to accuse americans of dishonesty. he said in his words i do consider those persons who are pirates who were made favored by the collusion of the united states government.

congress if anybody is to blame for their actions it is not dishonesty. the drone in the copyright world sure to pleasshut up these exong distinctions in his 1879 treaty he said in the law of copyright privacy is the use of liquo flay property violation of the legal rights of the owner. it isn't piracy to take without authority or a part or one another as written is neither a statute or the common law is thereby violating. this is not piracy because no law is violated and without misrepresentation is the authorship it isn't plagiarism. they couldn't accurately be called pirates were plagiarists yet they slipped away such a distinction in their indignati indignation.

throughout the 19th century, protests against yankee pirates issued from both sides of the atlantic. by the 1830s, the practice of reprinting or dish books and periodicals without permission has become a widespread in the american book trade. the reprinting of british titles with both a business and a game. they called it the game and exuberant scandal to exploit a vast and continuous resource. over the years many were seized upon. sir walter scott, george eliot, thomas, just to name a very few. charles dickens was a fiercely contested prize. hundreds of thousands of pirated copies of his works circulated in the united states. the weekly and daily periodicals of the 1830s and 1840s, firms like harpers have regarded

themselves as dickens authorized publishers, retaliated by issuing his novels and unbound parts at 12.5 percent. the first year of the american tour he denounced what he called a discount to booksellers. they grow rich in th rich in thd states by publishing books that do not reach one from their issue. that wasn't well received in the united states. writing in the senior, thomas carlyle adopted tones to express his disgust with american pirates and he said that they belong to a different nation and can't steal without being certainly hanged for it and give no permission to steal.

thou steel at all for the nations and for men in the book in the maker of this universe. in the latter part of the 19th century, american publishers were aggressive in reprinting popular british authors without authorization and often without payment in the fierce competition for the foreign titles in the 1880s which led to the overproduction of cheap paper covered books and a ruinous butting of the market, robert louis stevens on copyrighted works are widely reproduced as for mrs. humphrey, robert ellesmere, some of which went into ten unauthorized editions. when hope published and authorized in addition in 1886, he assured thomas harding that we will do the best we can withh that in these distressing times when it seems next to impossible to do anything with anything. so, aggressive was the reprint

industry at the time. o-oscar whoscar wilde learned ts a victim of american pirates while on his famous tour of the united states in 1882. in addition of the poems printed together with one of his lectures had appeared in a pamphlet and george munro's library and it quickly appeared and he complained to american reporters that in all of your railroad cars i find newsmen selling my poems store when i never can resist the impulse to rebuild a lesson on the defense. get piracy also helps spread the same and helps with the lecture. he earned thousands o of thousaf dollars as his share of two or received. piracy was a national compex activity intimately bound up with legitimate publishing and the copyright law. they put it in 1882 piracy was

the product of the law. respectable houses and pirate firms that always distinguishable from each other. just as the u.s. copyright act openly and encouraged the unauthorized recording of foreign authors said it was an enabling conditioning in the united states. not only the low overhead of the underwrite publishers more extensive authorized undertakings, promiscuous free booting allowed them to have startup lists in the capital but later propelled into power the respectability. a decentralized print industry in the antebellum years reflected the republican ideals of the cultural diffusion and widespread learning as the scope has shown. legislators build privacy into the copyright law as a way of accommodating the democratic values of access to literature in education.

but piracy was more than an enabling condition of legitimate publishing. it was also a necessary condition of american literacy and the literary culture in the 19th century throughout much of the century the united states was a net importer of the works of fiction and british books were sought by an increasingly literate populace. according to david saunders, the harper firm's first catalogue contained 234 titles of which 90% were english reprints. prior to the civil war, approximately 50% of all of the fiction bestsellers were unauthorized foreign works. the report of the 1878 british royal commission on copyright worried that american publishers could issue british books in the words of the commission at cheap rates to a population of 40, perhaps the most active readers in the world.

unauthorized reprinting can be viewed as a vast free rider problem to read or maybe easy rider given the sense that there were some costs associated with pirating. but a lot of overhead was removed. but if the reprinting the road so heavily on the foreign authors, why did the authors continue to write and publish? whwhited foreign authors contine to write and publish if the incentives were removed? in part because the copyright laws of their own countries allow them to capture the domestic benefits of their labors. they might hope to get payments from american publishers and complain about the scoundrel re- printers that american piracy didn't undermine their incentives to create so long they could look to their own markets for some reiteration. such an arrangement was of course irresistible to the american publishers. here they had access to a free

invaluable and continuously replenished resource that no amount of exploitation could noticeably deplete. the american public domain as i call it was parasitic in this regard. it annexed a resource of the foreign innovation without running the risk of losing that resource from failure to incentivize. but publishers, to back our producers. like authors they require economic incentives to go on producing.