Piracy_ The Intellectual Property Wars from Gutenberg to Gates - Adrian Johns [178]
Reprisal. There should be a schedule of "reprisals" against trespassers on these courtesies. This idea was advocated by the Harpers. It is not clear what the proposed reprisals would have been, but in all likelihood they would have comprised some kind of blacklisting, and even of reprinting on the reprinters. Cases are certainly known of individual publishers retaliating in these ways. But Carey rejected a formal scale, so none was adopted.
The first five of these conventions became core to the mid-centuryAmer- ican publishing industry's understanding of itself. They were still being cited in the i86os as the only basis for stability in what otherwise would descend into "chaos." Only the idea of a prescribed schedule of reprisals went nowhere. The Harpers, coming to the trade after Mathew Carey's generation, hadwanted a regime of principle, aiming at justice. Careywas aghast at the idea: he preferred a regime of custom, aiming at peace.'?
Courtesies could be effective. To cite just one example, a rival conceded a law book to McCarty and Davis with the remark that "this circumstance alone as I conceive (viz. the priority in receipt of the Copy from England) can give you any right over the publication of an English work."18 And transgressing invited retribution, which might well take the form of piracy. Thus a reprinter eager to take on Spencer's Evidence ofMan's Place in Nature "ventured upon the ruse of announcing it from advance sheets," as Youmans reported, only to find Appleton, who had advertised it first, threatening to pirate the reprinter's own copy of Lyell's geology A similar conflict attended Mill's On Liberty, Appleton this time losing out to Ticknor and Fields. Such examples could readily be multiplied. But at the same time, courtesies remained negotiable, up to apoint. One rather brazen transgressor tried to claim that pirating did not infringe "customary rights" if demand exceeded supply, but for the most part the distinctions were subtler and less nakedly self-interested. The Harpers used the New Yorkpress to advertise, for example, but Careypreferred that of Philadelphia, so disputes arose over what exactly constituted a "public" announcement. Neither was it entirely clear how much of a work one needed to possess to justify announcing it. Packages from London invariably contained less than an entire book, and, as Mathew Carey had told his son in 1821, it might be "impossible to tell with precision" what the texts they did contain actually were. The Careys certainly advertised before they had complete novels in hand-and occasionally when they had not even beenwritten. The Harpers then adopted apolicy of announcing all likelylooking titles that they came across in the London reviews, deciding only later which to actually republish. Carey followed suit. Eventually both sides were seeking out copies of Blackwoods and the Athenaeum with as much haste as actual books. Courtesy creep, as it were, had set in. And this would at length bring the approach into some disrepute. `All this chaos and uncertainty," said James Parton in 1867, "all these feuds and enmities, have one and the same cause,-the existence in the world of a kind of property which is at once the most precious, the easiest stolen, and the worst protected."i9
Like all games, therefore, this one had rules-or at least, proxies for rules. Copyright was not one of them, for the most part, because of the game's transnational playing field. In place of law the publishers advanced a system of civility, based on courtesies. But the increasing variegation of what was now an industry would put that idea to the test. And when it