The context Spoo ably recreates, though, is the legal environment governing American publishing from the early 19th century through the post-World War II period. In the 19th century, the so-called “reprint industry,” which mined previously published books, largely British, dominated American publishing. And while reprinters bore most of the fixed costs facing any publishing concern (labor, materials, advertising, distribution) they had one great competitive advantage: they didn’t have to pay their authors. Until 1891, US law extended copyright protection only to works by American citizens, so these reprinters made a business model out of selling British books, generally without ever contacting (much less entering into an agreement with) their authors. It’s hard to think of a more obvious example of “piracy” than this, and authors from Dickens to Wilde fumed about their vast lost revenue. A familiar anecdote describes Dickens fans, desperate to find out whether Little Nell was dead, storming the New York wharves as ships laden with the latest issue of Master Humphrey’s Clock docked. Some of those impatient fans, though, were probably publishers’ agents, frantic to grab their copies, get back to their presses, and be the first ones to market with a “pirated,” but entirely legal, American edition of the novel.
Frustrating as it was to aggrieved British authors, the law had some justification. The US was a large but largely under-booked nation in the early 1800s. In keeping with the spirit of the US Constitution’s Copyright Clause, which emphasizes that the real goal of copyright is not first and foremost the protection of an author’s rights but the promotion “of Science and useful Arts,” the law subsidized the production and dissemination of books. A lot of books. A lot of cheap books that would, Congress hoped, spread across (and educate) our widely dispersed and unschooled nation. And while the 1790 Copyright Act assured American citizens of copyright protection, ironically it did little to cultivate a native literary culture: why sign up an American author and pay royalties when one could print a guaranteed seller like Tennyson or George Eliot instead, and pocket the difference? As a result, British literature dominated American reading through the 19th century (with notable exceptions such as Uncle Tom’s Cabin, which was, in a neat turnabout, widely “pirated” in Britain).
If anyone could publish any British author, how, then, did the American publishing industry not consume itself through self-destructive cost-cutting? A professor at the University of Tulsa College of Law, Spoo is sensitive to the important distinctions between common law, legislated law, and informal community norms that carry the force of law, and thus identifies “trade courtesy” as the mechanism that saved publishing houses from bankrupting themselves through competitive discounting. These “pirate” publishers behaved more like a genteel cartel than like bootlegging gangsters, Spoo makes clear. A publisher would make it known among the community of reprinters that he intended to publish a given author or a book. Other publishers, parties to this informal gentlemen’s agreement, respected that publisher’s claim to that title, and renegades were punished through public shaming (manifested in advertisements that questioned the quality or authenticity of their texts) or, in the cases of particularly obstinate transgressors, commercial retaliation. Like Wal-Mart meeting Main Street, colluding reprinters would print their own editions of a violator’s books, pricing them ruinously low or even at a loss in pursuit of the greater good of the stability of the industry. At this time, in fact, while British authors referred to the entire American industry as “pirates,” publishers used the word internally to describe those members of their community who deviated from norms of trade courtesy.
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