Against Intellectual Monopoly

protection for foreign writers favored the
diffusion of literacy in the country. In Germany, it was the monopolyfriendly Otto von Bismarck who, in 1870, introduced a uniform copyright
legislation, modeled along the British lines; Goethe and Schiller, Kant and
Hegel, did not profit from it. It is only in 1886 that the Berne Conference
and the signing of the first international copyright treaty began to bring a
degree of uniformity to copyright throughout the Western world.
    Literature and a market for literary works emerged and thrived for centuries in the complete absence of copyright. Most of what is considered
"great" literature and is taught and studied in universities around the world
comes from authors who never received a penny of copyright royalties.
Apparently the commercial quality of the many works produced without
copyright has been sufficiently great that Disney, the greatest champion
of intellectual monopoly for itself, has made enormous use of the public
domain. Such great Disney productions as Snow White and the Seven Dwarfs,
Sleeping Beauty, Pinocchio, and Little Hiawatha are, of course, all taken from
the public domain. Quite sensibly, from its monopolistic viewpoint, Disney
is reluctant to put anything back in the public domain. However, the economic argument that these great works would not have been produced without an intellectual monopoly is greatly weakened by the fact that they were.
How New Is Napster?
    It is tempting to think that everything under the sun is new. For example,
the Napster phenomenon is surely new and cries out for new laws and regulation; surely, the music industry cannot survive the advent of widespread
copying. Or can it?

    At the turn of nineteenth century, the music industry was different from
the one we are familiar with today. No CDs, no mass concerts, and no
radio or television. The core source of revenue was the sale of printed sheet
music, which was carried out worldwide and on a very large scale. We learn,
for example, that in Britain alone about 20 million copies were printed
annually. The firms carrying out this business were not large multinationals
as today, but family-owned companies, such as Casa Ricordi in Milan,
which, nevertheless, managed to reach also foreign countries. Apparently
these "majors" managed to collude quite efficiently among themselves. The
records show that the average script sold in the United Kingdom for about a
fourteen pence. Then "piracy" arrived, as a consequence of two changes: the
development of photolithography and the spread of "piano mania," which
increased the demand for musical scripts by orders of magnitude. "Pirated"
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copies were sold at two pence each.
    Naturally the "authorized" publishers had a hard time defending their
monopoly power against the "pirates," enforcement costs were high, and
the demand for cheap music books was large and hard to monitor. Music
publishers reacted by organizing raids on "pirate" houses that were aimed
to seize and destroy the "pirated" copies. This started a systematic and
illegal "hit and destroy" private war, which led, in 1902, to the approval of a
new copyright law. The latter made violation of copyright a matter for the
penal code, putting the police in charge of enforcing what, until then, was
protected only by the civil code.

    The South Park portrayal herein of the "copyright police" storming the
house to arrest children for sharing files exaggerates the current situation.
In the early twentieth century, however, the hit squads of the authorized
publishers did indeed burn down entire warehouses filled with "pirated"
copies of sheet music - so perhaps South Park should remind us of what
might be if Congress continues in its current direction.
    At least in the case of sheet music, the police campaign did not work.
After a few months, police stations were filled with tons of paper on which
various musical pieces were printed. Being unable to bring to court what was
a de facto army of illegal music reproducers, the police stopped enforcing
the copyright law.
    The eventual outcome? The fight continued for a while, with "regular"
music producers keen on defending their monopoly and restricted sales
strategy, and "pirates" printing and distributing cheap music at low prices
and very large quantities. Eventually, in 1905, the king of the "pirates,"
James Frederick Willett, was convicted of conspiracy. The leader of one of
the music