Piracy_ The Intellectual Property Wars from Gutenberg to Gates - Adrian Johns [81]
PERPETUAL MOTIONS
Donaldson's appeal at the House of Lords began on February 4, 1774. With so much at stake, crowds gathered early. Burke, Goldsmith, Garrick, and others were lucky enough to find places in the gallery; hundreds more could not get in.63 What they came to hear was by common consent the culmination of the most important copyright case in history.
It is not now possible to recapture the exchanges that took place on those days in their entirety. What is known is that Lord Chancellor Apsley boiled the literary property debates down to three central questions. These he posed to the law lords present, requesting, as was conventional, that they cast advisory votes before the Lords as a whole determined the fate of the appeal. They were almost ascetic in their abstraction from everything that had imbued decades of debate with passion and meaning. First: by common law, did an author have the sole first right to print and publish a work? This addressed the fundamental point ofwhether authorship conferred a right by nature. Practically, this would only arise as a legal issue in cases like the unauthorized publication of correspondence, but its larger significance was that an affirmative answer was necessary if the London booksellers' claims were to be entertained at all. Second: assuming that this right existed, and leaving aside the 1710 statute, did it end with the work's publication? This was equivalent to asking whether an author, in publishing awork, presented it to the public in the sense that an inventor did an unpatented invention. The Londoners assumed that the answer was no. And then, third: if the common-law right did indeed last beyond publication, did the right conferred by the 1710 statute replace it? Only with this third question did the statute itself enter the frame.
The speeches that followed tackled all the themes of the decades-long dispute. Camden in particular added two more queries to Apsley's that restated the problem in such a way that he could mount a vigorous, and later much-lauded, assault on perpetual property. Equally important was the fact that Mansfield, who had earlier upheld perpetuity in Millar v. Taylor, remained silent. Mansfield also declined to vote, apparently out of deference to a convention that chief justices not take an active part when the Lords were addressing cases from their own courts. In the event, his reticence mattered as much as Camden's oratory. It left eleven judges registering their views. Question I, affirming an initial authorial property, passed handily enough by 8-3, although it is remarkable that even this minimalist motion did not pass unanimously. On question 2, asking whether the natural right were lost on publication-or whether authorship equated to inventionthe judges advised that it survived, by the narrower tally of 7-4. That left question 3, on whether the 1710 law supplanted the common-law right. This was the real nub of the whole conflict. Avote for the common-law right would endorse perpetual property. And the outcome could not have been closer. The clerk listed the tally as 6-5 against; but it seems that this was an error. In fact, the judges voted 6-5 in favor- and, as Mark Rose points out, it would have been 7-5 had Mansfield voted. The closeness of the tally demonstrates how finely balanced the debate still was.64
But these votes were merely advisory. The House as a whole had now to come to its decision, and, the judicial opinion having been recorded, this seems not to have been close at all. The peers decisively rejected the injunction against Donaldson's reprint. Donaldson's Edinburgh Advertiser crowed that not a single dissenting voice was heard. Another Scot, John Murray, who had long struggled to break into the London market, told a Glasgow law professor that the decision had dissolved an "illegal monopoly" sustained by a combination of scoundrels.65 The Londoners had finally got the definitive statement