Law isn’t the only way for people who do business together to keep one another in line. In most fields, there’s a faster, cheaper and simpler sanction: don’t do business with the miscreant anymore. Such self-policing by a group isn’t fail-safe. Ostracism might not cost enough to be a deterrent in markets with many participants, little reporting and few long-term relationships, and there will always be a few bad actors who choose to be disreputable. But law, no matter how absolute, doesn’t prevent every act of bad behavior either, and self-regulation is more flexible and quicker to adapt to changing circumstances. The phenomenon has been called “order without law,” and it has been detected in Maine lobstermen, who respect one another’s trapping sites; in chefs, who are ginger about knocking off one another’s recipes; and in stand-up comics, who usually refrain from stealing one another’s routines and punch lines. It has even been found, believe it or not, in publishing. Sometimes, in the absence of copyright, publishers have paid authors and have abstained from reprinting the books of authors they haven’t paid. Ulysses, by James Joyce, considered by some the greatest novel of the twentieth century, lost its copyright protection in America on a technicality soon after it was published. But from the 1930s to the ’90s, Joyce and his estate were paid royalties from its publication in America anyway, thanks to exactly this kind of happy anarchy. In his new scholarly book Without Copyrights, the legal and literary historian Robert Spoo tells the remarkable tale, which Spoo doesn’t necessarily deem a pretty one. Spoo rather sympathizes, in fact, with the character many observers would consider the villain.
That would be Samuel Roth, a fan, in equal measure, of soft porn and of Joyce, T.S. Eliot, Ezra Pound and other high-modernist writers of the early twentieth century. Roth published a series of mildly smutty magazines—mild by today’s standards, at any rate, though they landed him in jail in his own day—and was always on the hunt for material that he could reprint without having to pay for it. He trolled through records in the US Copyright Office in search of copyrights that hadn’t been renewed, and he leafed through literary journals in search of copyright notices that had been printed sloppily or not at all—in those days, grounds for a loss of copyright protection. On the rare occasions when Roth did pay authors, he tended to pay after the fact of printing, and usually only after considerable hounding. But Spoo believes nonetheless that Roth was in earnest—or, at least, “not wholly insincere”—when he claimed that he republished modernist prose and poetry because he was an admirer and wanted to make the work available to Americans of modest means. Spoo admits to falling under the spell, to some extent, of “the romance of dissemination,” as he puts it, and writes that he feels some affection for Roth, whom he describes as “U.S. copyright law luridly personified, shorn of courtesies and dedicated to a louche, bullying sort of public service.”
Joyce, in contrast, appears to Spoo as “the preacher of droit d’auteur,” guilty of taking a somewhat moralistic advantage of the legend of his genius. Joyce’s good-versus-evil rhetoric leaves Spoo a little uncomfortable. The third character in Spoo’s tale is Pound, who combined aspects of both preacher and rascal and is cast by Spoo as “the theorist” on account of his proposals to remake the law of copyright from scratch. Although Pound came to dislike Roth as a person, he refused to consign him to a circle of hell deep enough for Joyce’s satisfaction. Still, it wouldn’t quite be accurate to say that Pound occupied the middle ground; his opinions on copyright, as on many things, were too idiosyncratic to have much effect on business practices or on mainstream legal debate.
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In American publishing, the heyday of order without law came in the nineteenth century, when the practice was known as “the courtesy of the trade.” The system had antecedents in seventeenth-century England, and it has been described before, including by Adrian Johns, whose view of it in Piracy (2009), an excellent history of intellectual property law, is a little more cynical than Spoo’s.
Until late in the nineteenth century, no work published abroad could receive a copyright in the United States. American publishers who wanted to reprint foreign books risked going broke through their efforts to undersell one another, so they came up with a system: the first publisher to announce an American printing of a foreign book had dibs, and sometimes strengthened his claim by buying advance sheets from the original foreign publisher—which helped him get a jump on any rivals who might not abide by the understanding. According to what was known as “the rule of association,” an author’s later books belonged to the American firm that had published the first one, a restraint that was sometimes applied to American authors as well as foreign ones. Infractions were punished by private remonstrance; public shaming; appeals to consumers, booksellers and other publishers to ostracize the offender; and retaliatory underselling.