the matter of the text

8/3/2019 The Matter of the Text

1/39

T h e M a t t e r o f t h e T e x t :Commerce, P r i n t Cul ture ,a n d t h e Authori ty o ft h e S t a t e i n AmericanCopyright L a wMeredithL. McGill

Recentworkon thehistoryof authorshiphas looked to thedevelopment f copyrightaw for confirmation f the simultane-ous emergenceof the property-owninguthor and the develop-ment of a market or literaryworks.'A centralpremiseof thisscholarshiphas been thatchanges n the lawandin the market-placewerereciprocalandmutuallyenabling.MarkRose in par-ticularhasargued hat the modemconceptof theauthoraspro-prietor inds ts originwithinthedomainof law-specifically, intheeighteenth-century ritishstruggleover nterpretationf theStatuteof Anne (1710)-and thatthe law of copyright, n turn,facilitated hedevelopment f authorshipas a marketphenome-non. ForRose,it is the legalelaborationof the Lockeannotionthat an author, ike any otherworkman,has a naturalrighttotheproductof hislabor hatenablesboththetext andauthorshipitselfto becomeassimilatedntothe worldof ordinary ommod-ities.HoweveraccurateRose'sanalysismaybe to the terms andconditionsof Britishauthorship,2 is claims cannot easily betranslated nto the Americancontext without misrepresentingthe historicalorigins and culturalconsequencesof Americancopyright aw.At the simplestlevel, to suggestthat Americanlaw inherits and perpetuatesa Britishconcernwith individualpropertyrightsin texts is to assume a falsecontinuitybetweenthese egaltraditions.As I willarguebelow, helandmarkAmeri-can copyrightcase Wheaton .Peters 1834)self-consciously e-stagesthe Britishdebateoverliteraryproperty, eformulateststerms,andrejectsboth common-law opyrightand the Lockeanargument hatundergirdst. Rather hanconfirming he authoras the owner of a text thatwas clearlydefinedas a commodity,


2/39

22 The Matter of the Text

Wheaton v. Peters establishes going-into-print as the momentwhen individual rightsgive way to the demands of the social, anddefines the private ownership of a printed text as the temporaryalienation of public property. It is with the circumscription ofindividual rights and not with their extension that nineteenth-century American copyright law is primarilyconcerned.To regard copyright law as the means by which the individ-ual author and the text are absorbed into market culture, then,is to ignore what is centrally at stake in competing definitions ofthe text as property-the struggle between commerce and thestate to control that market. It is also to overlook the immensecultural weight that gets attached to the book-as-object. Recentcritics' tendency to treat copyright as a tool of modernizationthe means by which an object of elusive origins, produced bydubious labor, is made amenable to the emergent socioeconomicorder-both reverses the rhetorical polarity of the nineteenth-century debates and threatens to erase the productive misalign-ment of legal discourse and the market. In the American debateover literaryproperty,both sides define the text as an extraordi-nary commodity, an exception to the laws that govern ordinarythings. Indeed, it is the resistance the book offers to nineteenth-century definitions of private property that enables publishers tomake an extraordinarylegal claim-that of a property right inbooks past the point of sale-and that enables the law, in turn,to claim a federal stake in the circulation of these commodities.Through a close examination of Wheatonv.Petersand a numberof cases that draw on its authority, I hope to demonstrate howthe extraordinarymaterialityof the subject of copyright encodesfantasies about the circumvention of mass production and pro-vides a vehicle for exploring the form and limits of state power.3

1. Discontinuitiesn theGenealogy f AuthorshipRose traces the pedigree of modern authorship to an at-tempt by the inheritors of Stationers' Company privilege tomaintain the monopoly publishing rightsthey had held underthe

system of patronage. Briefly,when provincial publishers beganto exploit the Statute of Anne, a law which sought to regulatemonopolies in the book trade by limiting the term of copyrightprotection to fourteen years, the London booksellers, who heldmost of the valuable copyrights, seized upon an author's rightsat common law as a means of questioning the authority andreach of the statute. Essentially, what the London booksellersargued in the celebrated cases Millar v. Taylor(1769) and Don-


3/39

AmericanLiteraryHistory 23

aldson v. Becket (1774) was that the author's perpetual right tohis copy under the common law preceded and thus outlasted anystatutory limitation of that right. By basing their case on theinviolability of naturalrights and the priority of the common lawto the dictates of the statute, the booksellers could portray theStatute of Anne as a kind of secondary protection, a supplemen-tary enforcement of preexisting rights and not the foundation ofthese rights.What is intriguing about this argument is that Rose locatesthe origins of modern authorship not in an embrace of the newsocioeconomic order but as the rhetorical byproduct of a retro-gressive bid to solidify royal privilege as monopoly power. Andyet throughout his account, Rose represents the London book-sellers' eloquent defense of authors' rights as an idea whose timehad come, one that despite its ultimate defeat in the House ofLords, faced little or no substantive resistance:

[T]heLords' decision [to rejectperpetual copyright]did nottouch the basic contention that the author had a propertyin the product of his labor.Neither the representationof theauthor as a proprietornor the representationof the literarywork as an object of property was discredited. Nor, I sus-pect, could these contentions have been discredited at thispoint in history: too many and too powerful economic andsocial and ideological forces were at work. So long as soci-ety was and is organized around the principles of possessiveindividualism, the notion that the author has the same kindof property right in his work as any other laborermust andwill recur. ("The Author" 69-70)

It is this image of the certain triumph of the figure of the authoras proprietor that a close examination of copyright in the Ameri-can context disrupts. What becomes clear from an analysis of theterms of debate in Wheaton v. Peters is that the argument onbehalf of common-law copyright is met by a theory of authorshipof equal coherence and, given the ideological bent of the newnation, far greater persuasive power. This theory of authorship,grounded in a republican belief in the inherent publicity of printand the political necessity of its wide dissemination, stressed theinterests of the polity over the property rights of individuals andmaintained that there could be no common-law property in amanuscript "after the author shall have published it to theworld" (Peters, Report99).That the transformation from manuscript to print is imag-ined here to be instantaneous and absolute-going into print is


4/39


The debate overliterarypropertycut to the heartof republican deology.

not simplya matterof makinga manuscript vailable o thepub-lic, butimplies mmediate,universaldiffusion-gives someindi-cation of the tremendous oweraccorded o printwithinrepubli-can thinking.Yet it is not simplythe diffusionary owerof thistechnologythat persuadesthe court to establisha distinctionat law between handwritingand print, limiting the author'scommon-law ightto property n his manuscript nd requiringthatpropertyna publishedworkbe established ystrictcompli-ance with the statute. The debate overliterarypropertycut totheheartof republicandeology.As MichaelWarner asargued,republican iscourse egarded rintascoextensivewiththepub-lic sphereand reliedon thegenerality f theprinted ext to repre-sent andlegitimizepopularsovereignty. he notion thatan indi-vidualauthorhad a natural ight o hisprinted ext-a privateorpersonalrightwhichwaspriorto andin excessof theprotectiongrantedby the state-was fundamentallyncompatiblewith apolitical philosophythat associatedthe depersonalizationofprintwith a kindof selflesspublicity,heexerciseof civic virtue.Perpetualprivateownershipand controloverprintedtexts wasunacceptablen a culturethat regarded he free circulationoftexts as the signandguarantorof liberty. n the Americancon-text, the centraltenets of republicanism,whichally the printedtext withthepublic sphere,qualify he impactof the "principlesof possessivendividualism" n thedevelopment f literaryprop-ertyand, in concertwith developmentsn print technologyandpublishing ractice,work o postpone heemergence f the mod-ernproperty-owninguthoruntil late in thecentury.4If the arguments in Wheatonv. Petersprovide evidence of arupturen the genealogyof authorship,demonstratinghe resis-tance a republicanheoryof authorship an offerto the forwardmarchof possessivendividualism,heyalsoexposeanotherkindof discontinuity:hatbetween he availablemodelsof authorshipand the conditionsof publication heyattempt o describe.Onecan plot the debateoverliteraryproperty n Americaas a pivotpoint for a numberof interlockingransitions:he transition oa market conomy,whichenables heshift from a patronageys-tem to a market orbooks;theideological hiftthatreconfiguresthe relationof theindividual o thestate,reformulatesmonarchi-cal legalstructures s republican nes,and createsa demand ora national literature; he federalizingprojectof the MarshallCourt,whichconsolidatespowerat thenational evelby limitingcommon-lawprotectionsat the level of thestate;andsignificantchangesin the technologyof printand systemsof distributionwhich make possible the mass publicationand mass market-ingof books.This lasttransition-one characterized ya differ-


5/39


ence of scalethat s nonetheless onstitutive-provesleastnegoti-ablewithin the available erms of discourse.The argumentsnWheaton . Petersdemonstrate hat neither he Lockeannor therepublicanmodel of authorship s capableof conceptualizingprivateownershipn an era of massproduction, uggesting hatthe discourseof authorshipdevelopsnotcongruentlybut at oddswithchanges n the conditionsof production.

2. Materiality and the Common Law in Wheaton v. PetersThe difference hatrepublican ulturemakesto a consider-ation of literarypropertys evidentfrom a simpleoutline of thecase. Whereasthe text at the center of the Britishcontroversywas James Thomson'sThe Seasons(1730), a long descriptivepoemthataspired o the top of the hierarchy f literarygenres,the text at the centerof theAmericandebatewas a seriesof court

reportspublishedby the plaintiff,HenryWheaton, n the ordi-narycourseof his dutiesas a SupremeCourtreporter. makethis comparisonnot to remarkon the povertyof the Americanliterary cene,but to suggest hata different tandardof literaryvalue and of commercial rofitabilitybtained n the new nation.JamesGilreath's tudyof federalcopyrightrecords rom 1790-1800 demonstrates hat by far the most frequently opyrightedtexts in earlyAmericawerepracticalworks such as textbooks,manuals,atlases,and directories-books that met a republicanstandardof usefulknowledge,had a broadappeal,and,becauseof theirusefulness,werethoughtto haveenduringcommercialvalue.Althoughthe periodfrom 1800 to 1834 witnessedgreatstrides n the developmentof a native iterary radition,numer-ous factorssuchas the wideavailability f cheapreprints f Brit-ish literature nd the disorganization f the publishing ndustrykept profits rom the saleof domesticbelles ettresrelativelyow.Wheaton'sReports,which consistedof texts of the oralopinionsdelivered n the nation'shighestcourt,completewith abstractsandexplanatory nnotations, ould be considered epresentativeof what was thoughtto be most valuable n Americantextualproductionof this era.At the time of their initialpublication 1816-27),however,Wheaton'sReports njoyedonlylimitedcommercial uccess.Be-cause of Wheaton'sexcessivescholarlythoroughness, he vol-umes' readershipwas limitedto an elite audience;becauseoftheirextraordinaryulk,theywerepricedout of the rangeof allbutthe mostwealthyconsumers. t took the businessacumenofWheaton's pponentin this case, RichardPeters, o make them


6/39

26 TheMatterof theText

profitable.Peters, who was Wheaton'ssuccessor as SupremeCourt reporter, coredan ideologicaland economicknockoutby reissuingWheaton'sReportsn a condensed orm-one moreaccessible o ordinaryusers-at a fractionof the price.Peters'sstrategyof optingforhighvolumesales at a lowmarginalprofitratewasideallysuitedboth to therepublican reamof a univer-sal diffusion of learningand to the Americanrealityof wide-spread iteracy,an increasingneed for a knowledgeof nationallaw,andexpandingWesternmarkets.Not surprisingly,he suc-cess of Peters'sCondensedReportsof Cases in the SupremeCourtof the UnitedStates(1830-34)renderedWheaton's opyright nhis Reportsvirtuallyworthlessand promptedhim to seek legalredress.5That the firstSupremeCourt case to providea rulingonthe natureof the constitutional opyrightprovisionshouldtakeup the questionof who had the rightto publishSupremeCourtreportsseemsuncannyat the veryleast. I am convinced,how-ever, hat the self-reflexivityf this casehelpsto clarify he ideo-logicalconflictat its heart.Because t takescontroloverthe dis-seminationof federal aw,not literature, s its subject,Wheatonv.Peterscreatesa clash of absolutes: he inviolabilityof privatepropertyunderthe common aw is counteredby the unarguablevirtue inthiscourtroom) f a widespread nowledgeof the deci-sions of thefederaludiciary.Wheaton .Petersbrings ntostarkrelief the potentialcontradictionbetweenprivateownershipoftextsand the public nterest.In his analysis of Millar v. Taylorand Donaldson v.Becket,Rose characterizeshe differencebetweenthe argumentsof theplaintiffsand those of the defendantsas one of interpretivem-phasis:"Theproponentsof perpetualcopyright ocusedon theauthor's abor.Thosewhoarguedagainst t focusedon the resultsof thelabor, he work" Authors ndOwners 2).Roserepresentsthis difference n emphasisas a tactical one: becausethose infavor of the author'sright at common law pitchedtheirargu-mentson whatwas thoughtto be unassailablemoralground-the right of the individual o the productof his labor-thoseopposedhadto target heiroppositionat thedoubtfuldefinitionasprivatepropertyof thethingin question.Rose seesin thesplitfocusof this debate "a twin birth,the simultaneous mergencein the discourseof the law" of the two conceptsmost crucialtothe operationof the literarymarketplace:he author as ownerandthe textas a commodity 65).Whatis strikingaboutthe Americanrestagingof this de-bate is thatthephilosophicalproblemof thenatureof theprop-ertyto be protected akes overthe center of both the argument


7/39


for common-lawcopyrightand the case for its statutory imi-tation. While Wheaton'scounsel follow British precedentingroundingherightto thecopyin the author'sabor, heydevotemost of theirenergies o arguing hatliterarypropertys a thinglike otherthingsand thus falls underthe ordinaryprotectionofthe common law.Alternately, eters's ounsel base their defensenot on the incorporeality f ideasbut on the publicityof printand thepoliticalnecessityof its broaddissemination.Relyingonthe radicallyperformative atureof legalwriting-the fact thatit both describesand,in the act of its dissemination, romulgatesthe law-Peters's lawyers hift the characterizationf the courtreportsin questionfrom materialobjects that can be ownedto somethinglike pure circulation.Viewedas a rereadingofthe Britishcopyrightdebateand a redistribution f its terms,Wheaton .Peters ransforms n argument verwritingeitheraslabor or as a commodityinto a debateoverthe materialityorimmateriality f the textitself.On the whole, the argumenton behalf of Wheaton's ightto his Reports s multifaceted n approachand frequently elf-contradictory. trategically,Wheaton'sawyers,Daniel Websterand Elijah Paine, attemptto cover all angles by arguingforWheaton's ightboth under he common aw andunder he stat-ute. Whilethis dualapproachneed not be inconsistent, heir ar-gument s riddledwithcontradictions,uggestinga conflicted e-lationshipto the arguments aid out in the Britishprecedents.Typically,heircatalogof "generalprincipleson which an au-thor'spropertys based" ncludesmutuallyundercutting ppealsto the necessityof this rightas derived rom natural aw,andtotheconvenience f its enforcementunder he statute Peters,Re-port23).Throughout, heyinvokea Lockeanmodelof propertyrights,andyeton morethan one occasiontheyrailagainst hosewho wouldderiverightsfrom the stateof nature 18,20).6Moststrikingly,hey repeatedlynvoke henameandauthorityof Wil-liamMurray,LordMansfield,whilevirtually gnoringhis line ofargument,buildingtheircase insteadby engagingthe termsofthe argument et out by his opponent,JosephYates.7Websterand Paine had good reasons to avoid invokingsomeof Mansfield's rgumentsn favorof perpetualcopyright.Forinstance,Mansfield's ivotal nsistence hatthecommon-lawrightsof authorscan be deducedfromthe King'scommon-lawright to crowncopies would be decidedly unpersuasive n anAmerican ourt(English 401-3).What s moreperplexing,how-ever, s thattheyseem to ignoresomeof Mansfield'smostpower-ful pointsevenin the act of citingthem.Forinstance,Painebe-ginshisargumentn supportof Wheatonby quotingMansfield's


8/39


definition of copyright: "I use the word copy in the technicalsense in which that name or term has been usedfor ages, to sig-nify an incorporeal right to the sole printing and publishing ofsomewhat intellectual, communicated by letters" (Peters, Report18). This reference to the incorporeality of the right to producecopies is striking because of its potential as a line of inquiry-it promises to shift the grounds of debate from the problematicincorporeality of the thing, writing, to the incorporeality of theright to one's writing (and, implicitly, the incorporeality of therights to all forms of property).Yet, far from being preparedto assert the irrelevanceof thematerial status of writing, Paine is bent on determining the pre-cise physical nature of what Mansfield nonchalantly refers to as"somewhat intellectual." Throughout, Paine's argument seemshaunted by Yates'sproposal that because what one seeks to pro-tect with copyright is essentially insubstantial it cannot be con-sidered property.As a counter to Yates'svision, Paine proposesnot simply that writing is a material substancejust like any otherkind of property,but that it possesses a unique kind of material-ity, one irrevocablymarkedby individuality and identity: "Mr.J.Yates, the great opponent of literary property,. . . urges that it isimpossible to appropriate deas more than the light or air;forget-ting that books are not made up of ideas alone, but are, andnecessarily must be, clothed in a language, and embodied in aform which give them an individuality and identity that makethem more distinguishablethan any other personal property canbe. A watch, a table, a guinea it might be difficultto identify; buta book never"(Peters, Report 18). Paine'sattempt to fix the sub-ject of copyright produces a series of material designations thatexist in an unstable relation to one other. Tacitly acknowledgingthat ideas themselves could not be privately owned, Paine sug-gests that the object, the book, is the proper ground for a discus-sion of literary property. "Books" are further subdivided intoideas, which are immaterial,and two types of materialmanifesta-tion-language and form-which are necessarily related to theappearance of ideas in books, and which provide the grounds ofany book's claim to uniqueness. In shifting terms, however,Paineinvokes a distinction between form and content that is only par-tially supported by the metaphorics of clothes and body whichsucceed it. Initially, language seems to serve as the clothing forideas, their outer shell, that which makes them distinctive andidentifiable. Yet, discerning perhaps that the discardable natureof clothing renders it inappropriateto describe the necessary re-lation of language to ideas, Paine shifts his emphasis fromclothes to the body, stressing the corporeality of the form in


9/39


which deasappear.Thismetaphoricallide creates heimageofa disappearingbody:the clothes of languagearestripped o re-veal, not content,but the "form," figurefor exterioritywhichdisplaces he naked dea that hadoccupied heprivilegednteriorspace. It is, finally,this repeatedlydisplacedinteriorspace-whetheroccupiedbythe ideaswithin hebook,thebodybeneaththe clothes or the content of the form-that seemsoddlycut offfrom the "individualitynd identity"on whichthe text'sdefini-tion as personalpropertydepends.The significanceof this groundingof textualidentityin amaterialityiguredas a kind of unrelievedxteriority,nditscon-nectionto theextraordinarylaimfor the text which ollows thatbooks are "moredistinguishablehananyotherpersonalprop-ertycan be"),become clearerwhen this passage s readagainstthe section of William Blackstone's Commentarieson the Laws ofEngland n which t is based,a passagePainecites at a laterstageof his argument:"Now the identityof a literarycompositionconsistsentirelynthesentiment ndthelanguage.The samecon-ceptions,clothed n the samewords,mustnecessarilybe the samecomposition;and whatevermethod be taken of exhibiting hatcomposition o the ear or theeyeof another,by recital,by writ-ing, or by printing n anynumberof copies,or at any periodoftime, it is alwaysthe identicalwork of the author which is soexhibited;and no otherman, it hath been thought,can have arightto exhibit t, especially orprofit,withoutthe author's on-sent"(Blackstone1: 19-20).Blackstone'swell-knowndefinitiondistributes"theidentityof a literarycomposition"across formand content: dentity"consists"n sentimentandlanguage,con-

ceptionsand words.In contrast,in Paine'sversion,identityisconferredon bookssolely by languageand form. Thehypotheti-cal scenariosof detection n these two accounts,and the natureof the authorialproject hey imagine,revealmuch aboutthe as-sumptionsunderlyingheirpositions.Blackstone'sogic suggeststhe exposureof a plagiarismor piracy;his deductionstagesacomparisonof texts whichdevolve, nevitably,nto a singlecom-position.Paine'sscene of detection,on the otherhand,suggeststhe identification nd reclamation f a lost object.His compari-son is not betweentexts but amongseeminglyrandomobjectswhich are comparableonly in the degreeto whichthey can orcannot be markedwiththe identityof their owner.Whereas hethreat in the Blackstonepassageseems to be that of impos-torship-the possibility hatone author'sworkmightbe appro-priatedandexhibitedby another,"especiallyorprofit"-in thePainepassage,the scenariothatmust be dismissedwith an em-phatic"never" s something ike the utterloss of the signature,


10/39


the fear that a book could drop back into that group of objectswhose owner is unknown and possibly indeterminable. Thedifference between these passages could be characterized as ashift from a focus on the relation between texts in the market toa narrower concern with the relation between author and text; itcould also be characterized as a shift from a fantasy of unerringjudgment to one that would make such judgment irrelevant.Whereas Blackstone projects a world in which competing claimsto ownership could always be adjudicated, Paine imagines thatthe text is so imbued with the identity of its owner as to makeplagiarism impossible: "A watch, a table, a guinea it might bedifficult to identify; but a book never."What is behind this elimination of the possibility of plagia-rism is a desire to escape the market altogether. Here and else-where in Paine'sargument, the relation between the analogies heuses to justify the author's common-law right and the market forbooks these analogies purport to describe (and aim to regulate)is a complex one. While Paine insists on the text-as-object, char-acterizing it as an ideal type of personal property, he short-circuits the process of its production and distribution, permittinga narrativeof loss and reclamation to stand in for one'of exchangeand profit. Blackstone's scenario is conspicuous in its inclusionof scenes of production and reception. While its focus is on thetransfer of the text, its rhetorical aim is to insist that the "workof the author" retains its identity despite exchange. For Black-stone, the materiality of the text is largely irrelevant to its integ-rity. The ordinary objects with which Paine compares the text,however, are notably cut off from a narrative of production orconsumption by virtue of their indeterminacy,theirfailure to bemarkedby the individuality and identity of the persons to whomthey belong. They hang in suspended animation, objects whichcan be neither owned nor exchanged, personal propertydetachedfrom persons.8 The excess of materiality Paine ascribes to thetext-the distinctive embodiment that makes books "more dis-tinguishable than any other personal property can be"-seemsdesigned to insure that, should a book become similarly lost, itcould easily be restored to its rightful owner.This owner-he orshe whose "individualityand identity" is unmistakablyinscribedin the language and form of the text-is presumablythe author,yet the assurance of this identification conceals a crucial equivo-cation. The watch, the table, the guinea, and the book have beencompared as articles of personal property,not in relation to thehistory of their production. And, while it is possible that thewatch and the table could be owned by those who made them,the addition of the guinea to the list would suggest that what is


11/39


at issuehereis the degreeto whichtheseobjectscan be markedby the identityof those who possessthem, regardlessof theirmanufacture.Within he narrative f detection etup bythispas-sage,the restorationof the book to its authoras rightfulownercircumvents he entiresystemof exchange,makingthe authorthe destinationas well as the originof the text.A comparable ollapseof the roles of producerand con-sumer s apparentn Webster's losingremarks,n whichhe in-vokesthe self-evidence f the argument romnaturalrights:"Itis a prevailing eeling,and none can doubt that a man'sbook ishis book-is his property" Peters,Reports8: 653). What theforceof the tautologywouldoverride s the fact of the market,the necessarydiscrepancybetween he man who owns the bookas author,and theman who owns the book as reader. mplicit nthis repressionof the market s the elision of the fact of massproduction.Paine'semphasison the abilityof the authorto in-scribehisindividuality ndidentity nthemateriality f the bookplacesauthorshipwithin the fieldof artisanalproduction.Paineimaginesthe book to be a kind of ideal craftobject,one thatbearswithinits material orma traceof the processof produc-tion whichis absentfromordinary hings.Yet, as RogerStod-dardhasobserved,"Whateverheymaydo,authorsdo notwritebooks. Books arenot writtenat all. Theyaremanufactured yscribes and other artisans,by mechanics and other engineers,andby printingpressesandothermachines" 4). As a mainstayof his argument or the author'srightat commonlaw,Paine'sinsistenceon themateriality f thesubjectof copyright-his as-sertionthat "thequestionis not as to property n ideasbut inbooks"(19)-overlooks theentiresphereof production, lossingover the crucial technologicaland commercialdifferencebe-tween the author'smanuscript ndtheprintedbook.Within hetermsof Paine'sdefinition, he extraordinarymaterialityof thebook bearsthe burdenof overcomingnot onlythedifference e-tween producerand consumer,but also that betweenauthorandproducer.Thefrequent ecurrencenboth Webster'snd Paine'sargu-ments of therepresentationf the authoras soleproducerof thetext is a constantreminderof the structural onditionsof thisdebate-that the author and authors'rights serve as shadowfiguresor placeholders or the publisherand publishers' ights.Onemightbe tempted o conclude hat thisportrayalof the au-thoras producerrepresentshe publishers' killfulmakingoverof the author n the imageof themselves.YetI wouldargue hatthemanyrupturesn theirargument-the logicalcontradictions,the metaphorical lippages,and the analogiesthat do not fit-


12/39


testify to a genuine difficulty in extending the moral reach ofnatural law to cover mass production, in stretching the commonlaw to embrace the technology of print. The shortcomings of theargument on the common-law side are better measured as anindex of anxiety about the instability of property in the market-place than they are as proof of its manipulation.For instance, even though Webster and Paine repeatedlyidentify the subject of copyright as a thing, they persist in imag-ining it to be fundamentally inseparablefrom its producer,eitherby comparing the author's ownership of a book to the owner-ship of land, by comparing the book to a moveable good or com-modity that always returns to its owner, or-as in the exampleabove-by imagining it to be an autonomous object which hasinscribed within it the history of its production. This desire toreturn to the book as personal property the integrity, stability,and continuity of real property is evident in Paine's response towhat he refers to as "[o]neof the strongestpoints in Mr.J.Yates'sopinion ... that it is impossible for an author to have a propertyin his works after he has published and sold them" (Peters, Re-port 19). Paine makes his case with a series of analogies that areutterly inappropriate to the publication and sale of books: "Aswell might [Yates]say that a man who leases lands, parts with allhis property in them, and can never claim the reversion;and thatthe tenant has a right to sell or waste the inheritance. As wellmight he say that one who loans a chattel can never reclaim it"(19). Paine clearly prefers to think in terms of inheritance ratherthan of production, leasing instead of sale, and of the reclama-tion of an object rather than of profit or exchange. As in thecomparison of the book with ordinary objects, each of these ex-amples presumes a single owner, and each stages the inevitablereturn of a temporarily estranged possession. What is being as-serted here, however,is not so much the coalescence of producerand consumer as it is the substitution of a set of reciprocal eco-nomic relations for the more threateningprospect of anonymousand multiple sales.That Paine should invoke the ownership of land as a modelfor literaryproperty is not surprising, given that the common lawwas built around the protection of realpropertyand was thoughtfar better equipped to defend rights in land than rights in move-able goods and commodities.9 The absolute characterof the rightto land under the common law and the emphasis on its preserva-tion through an orderly succession were precisely the attributesthat those arguing for perpetual copyright strove to attach toliteraryproperty.What is remarkable,however,is the consistencywith which Paine overextends the analogy to real property, ex-


13/39


posing the incompatibility, ot the similarity,betweenthe two.Theserupturesn hisargument eem to be theproductof Paine'scontradictory cknowledgmentf thebook as a commodity anacknowledgmentmademanifest n hisemphasison thematerial-ity of thetext)andhiscommitment o a Lockean heoryof prop-erty,a theorythat seespropertynot as an alienable hingbut asa relationof enclosure.Thiscontradictions readilyapparentn the most Lockeanpassage n Paine'sargument,one in whichhe makes a powerfulappealto the self-evidence f naturalrightsandto thenecessitythatunderwrites rivatepropertyundernatural aw:

It would seem needlessto discuss those generalprincipleson whichan author'sproperty s based.Theyarethe sameas give man a title to any speciesof property.An authoracquiresa propertyn hisworks,because heyare theprod-uct of his own labour,bestowedwith the declaredandknown intentionof appropriatinguchproductexclusivelyto himself.They arehis, becausethe natural aw makesitnecessary orman to labour or his subsistence,and there-fore securesto him whathe thus acquires n obediencetoits commands.Theyarehis,because he samelawforbidsadependenceupon casualacquisitions,but enjoinsthe dutyof providence, nd of courseprotects hosestoreswhichbylabourhe seeksto lay by forthe future. Peters,Report23)The central eaturesof thisappealare familiar rom Locke's"OfProperty."aine ustifies he author'sprivatepropertyn his textas anact of appropriation hich s necessary or his subsistence.As in Locke's reatise, he circumference f the private s drawnby the author's abor,the moral groundfor appropriationsbodily self-perpetuation, nd the moral limit to acquisition ssuggestedby the principleof self-sufficiency. nd yet the mis-match betweenmasspublicationand Locke'scentralparadigmsof foragingand subsistence armingbecomesevidentalmost m-mediately. aine'sanxietyaboutthisdiscrepancyanbeobservedashis initialclaimthat"anauthor'sproperty"s like"anyspeciesof property" iveswayto a representationf the text'sextraordi-nary materiality:"Anauthoracquiresa property n his works,because heyaretheproductof his ownlabour,bestowedwith hedeclaredand knownintentionof appropriating uchproductexclu-sively to himself."As in the comparisonof the book with ordinaryobjects,Paine hereimaginesauthorialproduction o be a solo affair,adramaof separation nd return.Onceagain t is theobject tself


14/39


that bears the material trace of its economic destiny. That theauthor'sproduct should needto be "bestowed"with the author'sintention to reappropriate t, however,marks the degree of its fallfrom the Lockean narrativein which it is set. Locke's model ofproperty is notable for its depiction of the relation between per-sons and property as one of reciprocal self-constitution. This isnowhere more clear than in Locke'sdepiction of the primaryactof appropriation, that of eating: in the case of the "wild Indian"whose only "Inclosure" s his mouth, the person and his propertybecome literally indistinguishable (17-18). Locke is able to sus-tain this sense of the interdependence of persons and propertythroughout his genealogy of property as his dominant metaphorfor appropriation shifts from incorporation to annexation, ex-trapolating from man's ownership of his body to his ownershipof whateverhe mixes his labor with. It is labor,finally,that Lockerelies upon to draw the distinction between that which is com-mon and that which has been appropriated from the commonfor privateuse. In this context, the suggestion that the product ofan author's labor needs to be marked for exclusive appropriationbecomes a sign of its prior abandonment. The supererogatorymateriality of the text gives the clue to Paine's uneasiness abouta process of production that involves not solitary but diversifiedlabor,not exclusive but shared possession, not enclosure but dis-semination.

3. Disseminationand the StateIf the arguments of Wheaton's counsel founder in part be-cause of their dependence on a theory of property rooted in ananachronistic model of socioeconomic relations, the argumentsof Peter'scounsel could be said to exploit the political and socialdimensions of the mass production and distribution of texts. Pe-ter's lawyers, J. R. Ingersoll and Thomas Sergeant, build theircase around the special nature of legal reports, arguing that be-cause of their importance to the state, the texts of SupremeCourtdecisions could not be made the subject of literaryproperty.Yet

they treat these reports less as an exception to the general ruleof rightful authorial proprietorship than as a correction to theexcesses produced by the private ownership of printed texts.Playing to the vanity and the ambition of the Marshall court,Ingersoll and Sergeantpropose judicial reports as the ideal formof republican publishing.The urgency that underwrites this politics of print is evidentin the following passage where Ingersoll argues not simply that


15/39


the broaddisseminationof judicial reportsis compatiblewithrepublicanprinciples,but that the verysurvivalof the republicdependson theircirculation:Reportsarethemeansbywhich udicialdeterminations redisseminated, r rather heyconstitute he verydissemina-tion itself.Thisis impliedbytheirname;and it wouldneces-sarilybe theirnatureand essence,by whatevernametheymightbecalled.Thematterwhichtheydisseminates,with-out a figure, he lawof the land.Not indeedtheactualpro-ductionsof thelegislature.Thoseare the ruleswhichgovernthe actionsof the citizen. But they areconstantly n wantof interpretation, nd that is affordedby the judge.He isthe "lex loquens."His explanationsof what is writtenareoften moreimportant han the merenaked written aw it-self. His expressionsof the customaryaw,of that whichfinds no place upon the statute book, and is correctlyknownonly through he mediumof reports,areindispens-able to the properregulationof conduct in many of themost important ransactionsof civilizedlife. Accordingly,in all countriesthat are subjectto the sovereigntyof thelaws, theirpromulgations as essentialas theirexistence.(Peters, Report74)

Ingersoll's unon "reports"s blastsfroma cannonunderscoresthe direction n whichhe wants to push his definition:udicialreportsdo not so muchcontain the lawas enforce t by enablingcitizens to behavein accordancewith its strictures; eportsdonot simplydescribethe law,the fact of theirdisseminationn-sures its efficacy.This shift in emphasisemptiesthe reportsoftheirmateriality; hey areno longerthe vehicleor "means"bywhichlawsget transmitted,hey "constitutehe verydissemina-tion itself."This characterizationf thereportsas a kind of purecircu-lation s partof a complexdevaluation ndrevaluation f writtenlaw.Initially ngersoll aultsthestatutoryawfor its fixityanditsincompleteness:heproblemwiththe"productionsf thelegisla-ture"is that they stand"constantlyn want of interpretation."Ingersoll inds a remedy or thesedefectsin the immediacyandfullnessof thejudicialvoicewhichclarifiesby supplementinghewritten law, giving expression to "the customary law ... whichfindsno placeupon the statutebook" The valueof thejudicialreports,then, is that they are able to extendthe rangeof thelex loquens, epresentinghe common lawin printed ormwhileescapingthe fixityof the singular"statutebook"in their multi-


16/39

36 TheMatterof the Text

plicityandcontemporaneity. he periodicityandwidedissemi-nationof thejudicialreports nable hemto representhe"nakedwritten law"clothedin all the positiveattributesof the orallytransmitted"customaryaw"(whileescaping he limitationsm-plicitin the singularity nd smallcompassof thejudicialvoice).The completenessof thejudicial reports,however-their para-doxicalstatusas the written orm of unwrittenaw-requires animmaterialityhat borderson the sinister: he"sovereigntyf thelaws"dependson theiragentless "promulgation";hough theydo not containrules,theyare"indispensable"o regulation.Ingersollturns the tables on those arguingfor authorialproperty rom the vantageof the common lawby claiming hatto restrict hecirculation f thesereportswouldbeto underminetheauthorityof the common awitself.In a declaration esignedto flatter,he elevates he status of judicialreportsabove thatofboththestatutoryand the common aw:"theextendedprinciplesof national law ... are fairly and authoritatively known onlyas theyarepromulgated y this bench" Peters,Report75). Yethis pleas for unfetteredcirculationhave a broaderrangethanthe reportsalone. In detailing he potentiallydisastrousconse-quencesof theprivateownership f legaltexts,Ingersoll uggeststhat the privateownershipof any text is a potentialbreach ofliberty:

If eitherstatutesor decisions could be madeprivateprop-erty, t would be in the powerof an individual o shut outthe light by which we guideour actions.... A particularcase, or a whole seriesof cases mightbe suppressedby areporter ndowedwith different eelingsfromthose of thehighlyrespectable omplainant n this cause.It mightbe-come the interestof such a personto consignthe wholeedition to flames,or to put it at inaccessibleprices,or tosuffer t to go out of printbefore hecountryor theprofes-sion is half supplied.Theseareevilsincidentto everypub-licationwhichcan be securedby copy-right.Mereindivid-ual works,whetherliteraryor religious,the authors canundoubtedly hus control.Duringthe "limited ime,"forwhichthey areconstitutionally ecured n an exclusiveen-joymentof them,there s no remedy.... Can sucha powerbe asserted,with all its consequences, verthe decisionsofthehighest udicialtribunaln theland? Peters,Report76)

Far fromthejust rewardof individual abor,authorialcontrolhere represents he depredationsof personal interest, which,


17/39


if permitted,would frustrate he disinterestedoperationof thepublicsphere.As examplesof the deleteriouseffectsof privateownership,Ingersollcites the overpricingand undersellingofeditions, tactics that would impedethe circulationof a bookwhiledrivingup profits.Evenwhenprivateownerships legiti-matelysecuredby copyrightand these tactics are used to sell"mere ndividualworks"theyappear n the guiseof "evils" orwhich,during he time allowedby statute,"there s no remedy."Thisdepictionof thedangersof authorial ontrol s consis-tentwith other moments n Ingersoll's rgumentwherehe iden-tifiesjudicial reportsas a form of inalienablepublicpropertycomparableo statebuildingsand publicworks(Peters,Report76-77). Yet the exaggerated ense of powerhe accordsto theindividualmanipulator f textstestifies o a persistentasymme-try in Ingersoll'sportrayalof the nexusbetweenthe publicandthe private phere. f Wheaton's ounselfind it difficult o imag-ine the surrender f the textat thepointof sale,Peters's ounselimagine herelinquishmentf privatepropertyn the act of pub-licationto be so completeas to threaten heverysurvivalof theprivate.Responding o theplaintiffs' laimthat,intermixedwiththe reportsof the judges' opinionswas an editorialapparatuswhichrightfullybelonged o Wheatonas theproductof hislabor,Ingersoll etsout a kind of reverseLockeanismwherebyhemix-ing of private aborwith that which is publicwould cause theindividualto lose proprietary ontrolover the entireproduct:"An ndividualwho thusmingleswhatcannot be exclusively n-joyed,with whatcan,doesuponfamiliarprinciples, ather orfeitthe power over his own peculiarwork, than throw the chainaround hatwhich is of itselfas free as air. The intermixture..mustrender he wholeinsusceptible f exclusiveownership.Thatwhich is publiccannot in its naturebe madeprivate,but not econtra"Peters,Report78). According o Ingersoll, herecannotbe any such thing as appropriationrom the common.Going-into-printbecomesan actof incontrovertibleurrender;hecon-sequenceof the exerciseof civic virtueis irredeemable ersonalloss. The absolutismof this claim, however,allies this narrativeof dispossession o the fantasyof absolutepossessionput for-wardby Paine. As we saw in his definitionof judicial reports,Ingersolldoes not rejectthe authorityof the common law.In-stead,he redrawshe field,invoking ts authority rom a higherground.In a similarmove,he appealsto the natural-law efini-tion of property n orderto redefine he privatepropertyof theauthoras the commonpropertyof readers:"Feudalprinciples


18/39


apply to realestate. The notions of personal property of the com-mon law,which is founded on natural law,depend materiallyonpossession, and that of an adverse character,exclusive in its na-ture and pretensions. Throw it out for public use, and how canyou limit or define that use? How can you attachpossession to itat all, except of a subtle or imaginative character? If you mayread, you may print. The possession is not more absolute andentire in the one case than the other" (Peters, Report79). As inhis characterization of the judicial reports, Ingersoll'sdefense ofthe statutory nature of copyright relies on a shift in the locus ofcommon-law protection: the act of appropriation that he seeksto preserve is that of reading, not that of authorship. Yet thisendorsement of the reader-as-owner is dependent upon the fan-tastical supposition that the private act of reading could be ren-dered nonexclusive, that individual appropriation could, by asmooth and easy transition, become public distribution: that "ifyou may read, you may print."This proposition constitutes an astonishing elision of thesphere of production from the opposite direction than we havecome to expect. WhereasWebster and Paine imagine an unmedi-ated relation between author and printed text, casting the authoras sole producer, Ingersoll imagines an unmediated relation be-tween reader and text, suggesting that the technology of print isfundamentally no different than the repetition in the mind of thereader of the ideas of the author: "The possession is not moreabsolute and entire in the one case than the other."However out-rageous, this rewriting of consumption as a kind of productionis more easily accomplished than the reverse operation due toIngersoll'srepeated insistence on the immaterialityof the text inthe public realm.The image of a thoroughly dispersed, individualized massproduction of texts conjured up by the conflation of reading andprinting serves a double purpose. Within the terms of the repub-lican fantasy, the sheermultiplication of texts and the conversionof private acts of reading from acts of appropriation into in-stances of dissemination would seem to render textual produc-tion immune from the manipulations of individual interests. Inaddition, the proliferation of texts created by the shift in the lo-cus of ownershipfrom producerto readercreatesthejustificationfor statutory regulation. As Ingersoll argues, "It is an artificial,and thereforearbitraryrule which drawsthe distinction [betweenreading and printing];and in order to render it available,the les-son must be read in the statute" (Peters, Report79). Only statu-tory regulation of dissemination-a regulation that would act inthe interests of the state-can guard against the dangers implicit


19/39


in an "arbitraryule";predictably,t does so bymaking hisrulepublic,or "available."In a laterpassage, Ingersoll magineswhat wouldhappenshould the distinctionbetweenreadingandprintingbe enforcedwithout recourse o statutoryaw.He projectsa world n which,due to the mobilityof literaryproperty,extual dentity s radi-callyunstable:The inconveniences o the publicthatwould be the conse-quenceof merecommon aw assertionof [literary roperty]would be endless. It would lead to perpetualstrife.If themere individualstampof authorshipwould affordeven afoundationfor a claim, originalitymightbe pretended oby numerousndividuals,and a test of truthmightnot beobtained.If the real authorgivehis workthe officialstampof originalitybeforeit goes forth into the world,most ofthe questionsthat would otherwiseoccurare anticipated.The sourceof exclusiveownerships therefore ound npos-itiveenactments,and not in anyunwritten aw. Peters,Re-port 80)

Ingersollpresumes he scenariothat Paine so feared,the utterlossof thesignature r "individualtamp"of ownership.As if inresponseto Paine'sassertionthat the identityof the authorisindelibly nscribed n the materialityof the text, Ingersollpro-posesthat textsareradicallyunidentifiablenddangerouslyub-ject to imposture: houldwe relyon the abilityof the objecttobe markedby its maker,"a test of truthmightnot be obtained."Theproliferation f texts,then,and theuncertainty uilt ntotherelationbetweenauthorandtext,require he intervention f thestate. With the replacementof the signaturewith the "officialstamp"provided or in the written aw,Ingersoll's rgumenthascome full circle: while disseminations necessaryfor the exis-tence of the state, the supervisionof the state is necessarytoinsureproperdissemination.In arguing or the statutorynatureof copyright,Ingersollassociatesstatepowerwith a specialkind of writing,one thatis exemptfrom the problemof authorial ndeterminacy.n thisaccount,thewritten aw is the propersourceforpropertyrightsin textsandtheproper nstrumentor theirregulationbecause tis the only printed extwhoseauthorships self-evident:t is au-thoredby the public tself.According o a republicanheoryofauthorship, xclusiveownershipof textsin thepublicspherecanonlybe securedby a writing hat is purepublicity.


20/39


4. "Perfect Title": AmericanCopyrightand the Letter ofthe LawThe arguments of counsel in Wheatonv.Peters suggest thatthe nature of authorship and the legal status of the printed textwere genuinely contested issues at the moment when a nationalmarket for books first began to be imaginable. What becomesclear from a close analysis of this case is that in America thestruggle to define the nature of copyright neither establishes the

text as a commodity nor grounds the right to literary propertyin the person of the author. As we have seen, the argument fromcommon law sought to define the printed text as an autonomouscraft object, one that had become temporarily estranged from itsmaker. Rather than an acknowledgement of the profitabletradein books, the plaintiffs' insistence on the materiality of the textbecame the sign of its noncommodity status, the track or traceof a desire to imagine the mass-produced book as an exceptionto the rules of market exchange.10Whereas the argument fromcommon law sought to identify the text with inalienable privateproperty, the argument from statutory law sought to establishprint as a form of public property that could only be renderedprivate at the whim, and for the benefit of, the state. In Millarv. Taylor Yates had opposed common-law copyright on thegrounds of the intangibility and interiority of thought itself, ar-guing that "[t]hepropertyclaimed is all ideal; a set of ideas whichhave no bounds or marks whatever-nothing that is capable ofa visible possession.... Their whole existence is in the mindalone" (English2361). The defense in Wheatonv.Peters,however,rested its case on the publicity of print, shifting the justificationfor statutory protection from the inaccessibility of the personalto the visibility of the public realm. This alliance of the printedtext with publicity and with circulation itself made it difficultforthe defense to acknowledge either that bookmaking was privateenterprise,or that books themselves could be considered articlesof personal property. Shifting the locus of textual ownershipfrom production to reception, the defense redefined the act ofreading, transforming it from a private into a public act, fromindividual appropriationinto a form of production.The opposing arguments in Wheaton v. Peters not onlydemonstrate the inability of currentlyavailabletheories of prop-erty to accommodate the phenomenon of mass production theywere called upon to describe, they also suggest that the massproduction and distribution of printed texts in America cannotbe considered apart from the question of state power. The deci-sion in Wheatonv. Peters inaugurates a legal tradition in which


21/39

AmericanLiterary History 41

the printedtext is consideredan exceptionalcommodity-onein whichthe state has a controlling nterest.And while the his-toryof Americancopyright aw is in parta historyof thewayinwhichstate interestsand the interestsof commercearebroughtinto alignment, hepeculiardevelopment f copyrightawin thewake of this case ensured hat thetwo wouldremainat oddswellinto the twentiethcentury.'1Whileenabling nterstate ommercein books by establishing ederalcriteriafor their protection,Wheatonv.Peters does so by defining the printed text as commonproperty, nly temporarily edingmonopolyrightsto copyrightholders.With tsemphasison printas something hatnecessarilyexceeds he boundsof privateproperty,Wheaton .Petersbuildsinto American aw a resistance o individualcontrol over texts.Withgoing-into-print ontinually n mind as the transferpointat whichan author's ndividual laimgives wayto the public n-terest,nineteenth-centuryudgesplaced all but the most rudi-mentarydefinitionsof the text-as-objectoutsidethe boundsofindividualownership.In the matterof Wheaton .Peters, ngersoll's ppealto theself-authorizingpower of the state provedpersuasiveto thejudges,who votedfourto two in favorof the statutorynatureofAmericancopyright.The centralparadoxof Ingersoll'sargu-ment-that the sovereigntyof law is dependenton and con-structedin the image of that which it must also regulate-isplayedout in the majorityopinion,which sets precedentbothfor establishinghe technicalrequirementsor federalcopyrightprotectionand for clarifyingthe nature of federal law itself.Themajorityopinionfavored he defendanton three mportantpoints of law,ruling(1) that an author'scommon-lawpropertyin his text ceased upon publication; 2) that strictcompliancewith all statutory requirementswas necessaryfor establishingtitle in a work;and(3)thattherecould be no common awof theUS. This latterrulingexplicitlyconnectsthe legaldefinitionofthe text with the writtennessof federal aw.Both narrowingtsjurisdictionand considerably trengtheningts power,the Su-premeCourtdetermined hat the common law did not extendbeyondstate boundaries,assertingthat "There s no principlewhichpervades he union and has the authorityof laws,thatisnot embodied n the constitutionor laws of the union"(Peters,Report100).The courtused the debateoverthe definitionandregulationof theprinted ext to claimfor federal aw thegeneral-ity andavailability f theprintmedium tself.i2JusticesSmith Thompsonand Henry Baldwin dissentedfrom theserulings, nsistingthat an author'scommon-law ightto his textexistedquiteapart romthequestionof statutorypro-

Withits emphasisonprint as somethingthatnecessarilyexceeds theboundsof privateproperty,Wheaton v.Peters builds intoAmericanlaw aresistanceto individualcontrolover texts.


22/39


tection. And yet all six justices voted unanimously that "no re-porter has, or can have any copy-right, in the written opinionsdelivered by this court" (Peters, Report 108). This final rulingproved most damaging to the prospects of Wheaton, who wasleft with the expensive option of pursuing a property claimin what amounted to little more than his editorial apparatus.'3What was most consequential for American authors and Ameri-can culture in general, however,was the way in which the deci-sion in Wheatonv.Peters bound the question of the nature of theprinted text to the question of the nature of the law itself. Look-ing brieflyat the text of this decision and a number of cases thatdrawupon it, I will argue that the connection between print andthe sovereignty of law is responsible for the narrowness withwhich authors' rights were initially defined in America and for astrange literality in their enforcement. In exempting the law itselffrom the rules of authorship it sets in force, Wheatonv. Petersdefines the ideal American text as one that operates powerfullyin the absence of an author.

Writing for the majority, Justice John McLean establishesthe moment of going-into-print as a point of crossing. AsMcLean explains, an author holds property in his text under thecommon law up until the moment of publication; thereafter hesurrenders his common-law right in exchange for statutory pro-tection. McLean was sympathetic to the plaintiff's case, but heinsisted that an author'sproperty claim was satisfiedat the pointof sale: "The argument that a literaryman is as much entitled tothe product of his labour,as any other member of society, cannotbe controverted. And the answer is, that he realizes this productby the transfer of his manuscripts, or in the sale of his workswhen first published" (Peters, Report 99). This ruling not onlyestablishes a distinction at law between handwriting and print,identifying the former as personal and the latter as public prop-erty, it provides for state intervention at the point of transferfrom one medium to the other-the point at which the manu-script becomes potentially profitable. In his dissent, Thompsonobjected that the court sought to restrict an author'srights at thevery moment he tried to exercise them. He found it ironic thatan author could maintain absolute control over his text only in-sofar as he did not attempt to publish it. In Thompson'sopinion,confining absolute rights to the private sphere deprived them oftheir significance; it was "a mere mockery for the law to recog-nize anything as property,which the owner could not use safelyand securely for the purposes for which it was intended" (Peters,Report 116).Yet, while Thompson lamented the intervention of the state


23/39


in the publicationprocess, depicting t as a kind of theft, themajorityagreedwith McLeanthat the factof publication rans-portedthetext outsidethe boundsof privateaw.Calling or col-lective assentto the proposition hat an authorsurrendered isprivaterightsupon goinginto print,McLeanasked"Isthereanimpliedcontractby every purchaserof his book, that he mayrealizewhatever nstructionor entertainmentwhichthe readingof it shall give, but shall not write out or print its contents?"(Peters,Report99). That McLeanexpecteda resounding"no"wherewe would answer n the affirmativeestifies o the power-fully reprivatizingffectsof twentieth-centurynterpretationsfthecopyrightaw.Curiously,he distinctionatlawbetweenhand-writingandprintdependson an argumenthatrefuses o regardthetwo,whenperformedbythereader, s substantially ifferent.Thinkingalong the lines set out by Ingersoll,McLean securesthe easy transitionbetweenhandwriting nd printat the pointof receptionby carefully ontrolling his relationat the pointofproduction.It is as if the stable,hierarchical elation betweenoriginaland copy is wholly shatteredby mass productionandcan only temporarilybe held in place by governmentdecree.Oncein the publicrealm,the text is susceptible o uncontrolledcopyingbecauseit is, itself,all copy.As publicproperty t hasno necessaryconnectionwith the author'smanuscript,whichisentirelyandinaccessibly rivate.The stategrants he author em-porarycontrolover the printedversionof his handwrittenextby severing he connectionbetween he two,andby inserting t-selfas theprincipleof their articulation.The centralityof the distinctionbetweenhandwriting ndprintto the court'sdefinitionof statutory opyrightwas not loston lecturersand playwrightswho attemptedto prolongtheirrightsunderthecommon awby deferringpublication. n Ferrisv. Frohman1912), the SupremeCourtruled that an unprintedplay fell under the protectionof the commonlaw despitefre-quentpublic performancesn both Americaand GreatBritain(KaplanandBrown64-70). Eventhoughstageaudiencesmightbe as numerousas a book'sreadership,he fact of live perfor-mance and the limitednumberof viewers n eachaudiencesug-gestedto the court that theatricalexhibitions ell short of thewholesale abandonment o the publicsignifiedby the mediumof print.Thatin American aw,going-into-printwasimagined o bethedefinitivemomentatwhichanindividual urrenderedrivaterightswithin the publicsphere s perhapsbest demonstrated ythe late nineteenth-centuryttemptto convertthis loss into akind of gain. In their influentialessay on the rightto privacy,


24/39

44 TheMatterof the Text

SamuelWarren nd Louis Brandeis est theirproofof the "gen-eralrightto theimmunityof theperson,-the rightto one'sper-sonality"on the common-law ight"to prevent he publicationof manuscripts"207,200).14Warren ndBrandeis ee theabso-lute rightover the handwritten ext conferredby the commonlaw-specifically, theauthor's ight o chooseagainst hededica-tion of hiswriting o thepublicvia going-into-print-as thekeyinstance hatproves he generalruleof the citizen's ightto pri-vacy.Rather than presupposing he rightto property n one'spersonality, ndestablishinghe rightto all formsof writingonthatground,American awinfersa propertyn the self from thedifferential rotectiont affords o handwritingndprint,deduc-ing the rightto privacyfroman author'sabilityto choose be-tweenan absoluteand a qualified ightto hisproductions.Whatto Thompsonooks likea radicalandunjustcurbon anindividu-al's right to property,becomes at the turn of the centurytheground orthe assertionof a whole newset of rights.The court'sdecision n Wheaton .Peters hat an authorcannotmaintain"aperpetualand exclusiveproperty"n a text afterhe has "pub-lished t to theworld,"becomesproofof theexistenceof a realmover whicheverypersonholds rightsthat areperpetualand ex-clusive.The emphasisof the court in Wheaton . Peters,however,wason the limitednatureof anauthor's ightto hisprinted ext,and on the fragilityof this right.Groundedneither n customnor in nature,copyrightwas a grantfromthe statethat couldeasily be forfeited.The complexstatus of the printedtext as aformof temporarily lienatedpublicpropertys evident rom heprocedural equirementshat the courtinsistedwereabsolutelynecessary orestablishing opyrightprotection.Likethe Britishstatuteon which it was based, the CopyrightAct of 1790 re-quiredthat the prospective opyrightholderdeposita copy ofthe title of his book in the clerk's office of the local districtcourt-a sort of regionalized ersionof theStationers'Companyregister. n addition,the author or proprietorwas required o"causea copy of the saidrecord o be publishedn one or moreof the newspapersprinted n the UnitedStates,for the spaceoffourweeks,"and to delivera copy of the publishedbook to theoffice of the Secretary f State(Solberg34).A finalprerequisiteadded n 1802 nvolvedgiving"informationf copyright" n thetitlepageof each editionpublishedduring heterm n whichthebook was to beprotected Solberg38).What s strikingabouttheserequirementss both theinter-play theyset up betweenpublicauthorityand textualauthorityand thejudges'insistence hatthe authoradhere o them in the


25/39


order heywereprescribed r fail to achieve"perfect itle" n hiswork(Peters,Report106).Theprerequisitesorcopyrightmarkthe text'sdual statusas bothpersonalandpublicproperty.Whilethe copyrightnoticeon the titlepageservesto secure ndividualownership, t also implicitlygives notice of the date on whichthatrightexpires.Thiswaspowerfullyhe case under heoriginalstatute,which imited he author o a fourteenyeartermof own-ership(renewableor a secondtermof fourteenyearsprovidedthat the author,his executor,or his assignsreregistered nd re-publicized this claim). While the initial period of ownership wasextended o twenty-eight earsin 1831,makingthe durationofcopyright protectionroughly approximate hat of an author'sprofessionalife,thedecision n Wheaton . Petersreemphasizedthe fact that the correspondencebetweenan author and hiscopyrightedextwasfullymediatedby the state.This is nowheremoreclearthanin thejudges'disagreementover the natureof the copyrightnotice.The 1802statutedefinesthe titlepagenot as the locus of privateright,but as the site onwhich a copy of the newspaperrecord shouldbe printed.Thispublishedannouncementof the intent to publish s in turnde-fined as a copy of the record that is enteredby the authorinthe districtcourt.15Rather hana simplesign of ownership,hecopyrightnotice bearswitness to a multistepprocessby whichthepublic,whichauthenticates hebookandconsents o restrictits distribution,s acknowledged.Through he processof dupli-cation which is its mark,the authorizingpublicsphere s foldedinto the book itself.In the leaddissent,Thompsonofferedan alternate eadingof the titlepage,arguing hatit shouldbe consideredan "expresscontractmadewith a partywho shallpurchasea book, that heshallnot republish t" (Peters,Report114).Thompsonclaimedthat"therightset up andstampedupon the title-page .. shutsthe dooragainstanyinference, hat thepublicationwas intendedto be a gift to the public" 116).Yet the majorityof judgesre-jectedthe notionthatprintcould be madethesubjectof privatecontract.Theyinsisted hattheauthority hatrestricts he distri-butionof texts couldonlybe a publicauthority,tselfestablishedby recourseto the mediumof print.Both dissenting udges inWheaton .Petersstruggledagainstthe majority'sdentificationof printwith a generalized ublicsphere,arguing hat anauthor'sstatutoryrightwassimplybureaucratic:t was vestedat themo-ment he registeredhis title at the district court. The majority,however,maintained hatpropertycould not be vesteduntilallof these conditionshad been fulfilled,emphasizing he publicoriginsof this rightand the dependenceof copyrightprivileges


26/39


on the performance of a public duty. According to the majority,property rights in printed texts could only be securedby an inter-locking series of printed-and circulating-claims to property.With its insistence on strict compliance with the statute,Wheaton v. Peters inaugurates an emphasis on the letter of thelaw in American copyright that is inseparable from the court'sconception of the essential writtenness, or availability,of the ruleof law. While the court's primary aim may have been to assertfederal control over interstate commerce,16 he majority justifiedits decision that "there can be no common law of the UnitedStates" with an attack on judicial arbitrarinessfamiliar from thebroader movement for the codification of American law (Peters,Report100).17 McLean asked sardonicallyif the minute complex-ities of British common law were either "brought into the wildsof Pennsylvania by its first adventurers"or were "suited to theircondition," suggesting that even American geography militatedagainst common-law authority (Peters, Report 101). As an anti-dote to its unnecessary intricacy, McLean praised the publicity,clarity, and specificity of the statutory law. In fact, the entiretenor of the decision seems designed to disallow in interpretationof the copyright statutes the kinds of complexity characteristicof the interpretationof the common law. In perhaps its most no-torious ruling, the majority determined that Wheaton's depositof eighty copies of his Reports with the Secretary of State (asrequired by his contract as Supreme Court reporter)did not sat-isfy the copyright law'srequirementthat a single copy be sent tothe same address. While it would hardlytake great sophisticationto arguethat, in satisfying the demands of his contract, Wheatonhad also satisfied the demand for access required by the copy-right statute, the majority still preferredthe simple and irrefut-able argument that eighty did not equal one. Given the opportu-nity to judge on principle, the court retreated behind the letterof the law.The judges' discomfort with legal authority that was ob-scure and subject to interpretationis apparent from their unani-mous decision that no one could hold copyright in the writtenopinions of the court. This declaration at once reaffirmsthe purepublicity of SupremeCourt decisions, steeringclear of the tyran-nical implication that any individual could own the law,and cov-ers for the contingency of the decision-making process. Whilefrom the moment of their delivery Supreme Court decisionscarry the full force of law,they are, after all, mere opinions, actsof interpretation that are subject to the whims of individualjudges. Susan Stewart'saccount of the dynamics of identity anddifference in the law'sregulation of the literary helps to explain


27/39


how the judges' insistence on the publicityof their opinionsworks to conceal the operationof the lawat the momentof itsmaking.Stewartargues hat "theoxymoronof 'literary roperty'continually ppearsas the sitein which he lawworksout all thatit is not as a form of writing: heunlocalizable,he excessof thesignifier,he nondeclarativen syntax.The idealizedconditionsof codification-authority, genealogy,precedence,application,specificity,and transcendence-are establishedas qualitiesof aliteraryrealm that it becomesthe task of the law-as writingthat is other-to regulate" 16). Accordingto Stewart, he lawprojects heliteraryas an idealizedversionof its ownoperations,both doubling tself,and redoublingts authorityby servingasthe instrumentby which an unrulytextuality s disciplinedandordered.The centralquestionshe seesdoggingthe developmentof copyrightaw-"How canthelawmaintaina distance rom tsstatusaswritingat the same timethatit proclaims nd delimitsadomainof writing?" 18)-serves well as a generaltype of themore explicitly political question that troubles the court inWheaton . Peters:how can thejudgesclaimauthority or theiropinionsat the same timethat theydelimitthe scope of federallaw,confirmingts authorityby aligning t with the unimpeach-ablepublicityof the mediumof print?Thecourt'sownauthorityseemsdangerously alled into questionby the standardsof self-evidenceandavailabilityhatit setsfor federal aw.The courtaccomplishesheworkof idealizationanddiffer-entiation n twoways:by requiringhatcopyrightaw be subjectto a literality n interpretation nd exactingstandardsof com-pliancethat will confirmthe rationalityand inflexibilityof thewritten law; and by definingSupremeCourt opinions as thearchetypically nowned and unownable ext. While the judgesvehementlydisagreed verwhethergoing-into-printransformedthetextfromprivatentopublicproperty,heywereableto cometo theunanimousdecisionthat the as-yet-unprintedpinionsofthe court were a uniquely nalienable orm of publicproperty.Necessarilyof one voiceon thisissue,the courtproclaimed oththat no reportercould hold copyrightin the opinions of thecourt,and that"the udgesthereofcannotconferon anyreporteranysuchright" Peters,Report108;emphasisadded).The socialmechanism or monitoringprivatecontroloverpublic propertycould not itself be subjectto this transformation.As Stewartargues,the law must exempt itself from its own supervision;the legal attempt to articulatecriteriafor textual ownership"strengthenshatgrounduponwhichthe law stands... by [de-flecting]ourgazefromits situatedquality" 21).The court's nsistenceon the unqualifiedpublicityof their


28/39


decisionsprovedproblematicorPeters-ostensibly the victor nthis case-who was forcedto defendhis reprintedextagainstacompetingset of reprintswithin a year of the decision.18t is,however, he court'semphasison the irrevocablepublicityofprintand its insistenceon strictcompliancewith thestatute hatprovemostconsequentialorthehistoryof American opyright.The case law that drawson the authority of Wheatonv. Peters ismarkedby an extraordinaryiteralism n definingwhat it is thatauthorsownand a readiness o qualifyor overturn herightsofauthors hatoften seemsexcessive.Theemphasison the letterofthe law n Wheaton .Peters etsthe standardora legaltraditionthat, for much of its history,was heavilyweightedagainsttherightsof authors.On the authorityof Wheaton .Peters, he SupremeCourtestablished edication o thepublicupongoing-into-prints thegeneralrule,againstwhich an author's emporary ightto holdproperty n his text had to be scrupulouslydefended.For ex-ample, in Holmes v. Hurst (1899) the court determined that anauthor's ailureto securecopyright or a singleinstallmentof aserialpublicationwasenoughto "vitiate copyrightof thewholebook"(UnitedStates1267-73).Similarly,he courtin Mifflinv.Dutton 1901)ruledthat an author's opyrightwasinvalidwhenthe rightsto the book were taken out in a differentnamethanthatof theinstallments hatwereseriallypublishedna magazine(United States 1784-95).19Thecourt's nsistenceon a narrowdefinitionof thecriterionof usefulness-the republicannotion thatcopyrightcould onlybejustified nsofar as it promoted"theProgressof ScienceandUsefulArts" Solberg31)-kept a widerangeof publishedmate-rial frombeingcoveredby the statute.Up until 1903,when Jus-tice OliverWendellHolmesvastlyexpandedhepurviewof copy-right by suggesting hat the merepresence n a text of marksof personalitycould afforda groundof ownership, he texts ofindustry, uch as advertisements,marketquotations,and evennewspaper eportswerenot thoughtto be subject o copyright.20These textswereuncopyrightableot simplybecausetheywerebased on facts, which were publicproperty,but becausetheyweremerelyusefulworks.The texts of industrycould not pro-mote learningbecause they were too ephemeral,exhaustingthemselves n thecourseof use. Likethemachinesprotectedun-derpatent aw,to whichcopyrightedextswerefrequently om-pared,printedtexts were udgedworthyof governmentprotec-tion according o a standardof performance.21ike a machine,the copyrighted ext must continue to perform ts service overtime,therebyustifying ederalprotection. t must be a means of


29/39


production,not a mereobjectof consumption.While the valueof the copyrighted ext is linkedto its durability,his is not theendurance f theliterarymasterpiecewhich,while traceable o amomentof inspiredorigination, s imagined o exist outside oftime.Propertyn a usefultextis conferrednot on the basisof itssingularityor universality, ut on its abilityto perform ts workthroughhistory; t must remainusefulpast the point at whichstateprotectionceases.As Thompsonargued n Claytonv. Stone(1829), literarypropertycould not be lodgedin "a workof sofluctuatingand fugitivea form as that of a newspaperor pricecurrent"(United States 645).22The court'snarrow nterpretation f the criterionof use-fulnesscomesinto conflictwiththegeneral ntentionof thestat-ute in the case of obsceneworks,which were deemeduncopy-rightablebecausetheir only imaginableeffectwas "to corruptthe moralsof the people"(UnitedStates1726).In Martinetti .Maguire 1867)thecourt ruledthat TheBlackCrook 1866),"anexhibitionof women'lyingabout loose' [in]a sort of Moham-medanparadise," ould not be consideredpropertybecause ofits impropriety. ccording o themajority,TheBlackCrookwaspurespectacle,incapableof promotinganythingbut "prurientcuriosityor an obscene maginationbyveryquestionablexhibi-tions and attitudesof the femaleperson"(UnitedStates1726-27).Not onlyisprurienceunproductive,heobscene extis virtu-ally contentless.Like the advertisement r the newspaperpricecurrent,which aretoo intimatelyboundup with the processofconsumption o leavea remainderhat can be owned,this spec-tacle of women "lyingabout loose" cannot be the subjectofpropertybecause its subjectis too diffuse.Accordingto thejudges,this spectacle ackedthe coherenceof a "dramatic om-position"(UnitedStates1726).The inherent awlessnessof las-civiousness-in both formand function-causes it to fall out-sidetheprotectionof the law.Tellingly,hejudgesrepresentedhe uselessness f thisspec-tacle n termsof its inaccessibilityo print.Forall of itsemphasison illicit exposure,TheBlack Crookwas markedby a kind ofopacity:"Aplaylike thishas no valueexceptas it is appreciatedbythetheatre-going ublic.It cannotberead-it is a merespec-tacle,andmust be seen to be appreciated"UnitedStates1723).Here,the limitedpublicityof the spectacle-the fact thatwhatviewersvaluedin The Black Crookwas in excessof the printedtext,andtherefore,n somesense,resistant o massproduction-is not the signof a uniqueness hatconfersprestigebut a struc-tural imitation hatmakes tunworthy f protectionasan articleof property.That whichexceedsthe letterof the text also lies


30/39


outside the bounds of the letter of the law.And yet, as Eaton S.Drone notes in his influential commentary, far from censoringthe obscene, the court's insistence on restricting copyright toedifying texts actually grants vice a form of license: "[I]n de-clining to interfere with the piratical publication and sale of anobnoxious book, [the court] removes an obstacle to its wider cir-culation" (181). The republican ideal of an automatically en-lightening, propertylessdissemination finds its pathological real-ization in the unfettered circulation of obscene texts.The extent to which an author'srightscould be underminedby a literalisticinterpretationof the copyright law is perhaps bestillustrated by the controversial case Stowe v. Thomas (1853) inwhich the court determined that an unauthorized German trans-lation of Uncle Toms Cabin: Or, Life among the Lowly (1852)did not infringe upon Harriet Beecher Stowe's copyright in theoriginal. The court's decision in this case turned on the difficultyof finding a material ground for the author's property once shehad exchangedherinalienable butunprofitablerightto her manu-

script for a qualified right in a printed text that remained elusivein its generality and unreclaimable from the public realm: "Be-fore publication [the author] has the exclusive possession of hisinvention. His dominion is perfect. But when he has publishedhis book and given his thoughts, sentiments, knowledge or dis-coveries to the world, he can have no longer an exclusive posses-sion of them. Such an appropriationbecomes impossible, and isinconsistent with the object of publication. The author'sconcep-tions have become the common propertyof his readers,who can-not be deprivedof the use of them, or their right to communicatethem to others clothed in their own language, by lecture or bytreatise" (United States 2484). The German edition of UncleTom'sCabinposed a problem for the court because it reproducedthe text without duplicating either the author'smanuscriptor theprinter'scopy. As Justice Robert C. Grier remarked, "The sameconceptions clothed in another language cannot constitute thesame composition; nor can it be called a transcript or 'copy' ofthe same 'book"' (United States 2485). Strikingly, the judgesruled that Stowe's copyright in Uncle Toms Cabin secured nomore than a property in the words of her text in the order inwhich they appeared.23 n this case, the emphasis on the letter ofthe law meant that the author could own only letters.The court's problematicattempt to affirmthe immaterialityof public property in texts while also acknowledging the neces-sary materiality of the subject of copyright finds its most appo-site metaphor in an extraordinarypassage, which representsthe


31/39


public'sproperty n Stowe's ext as the freelycirculating,nakedbodiesof her centralslavecharacters:By the publicationof herbook the creationsof the geniusandimagination f theauthorhave becomeasmuchpublicpropertyas those of Homer or Cervantes.Uncle Tom andTopsyare as muchpublicijuris s Don Quixoteand SanchoPanza.All herconceptionsand inventionsmaybeused andabusedby imitators,playrights sic]and poetasters.Theyare no longer her own-those who have purchasedherbook, mayclothe themin Englishdoggerel, n GermanorChineseprose.Herabsolutedominionandproperty n thecreationsof her geniusand imaginationhave been volun-tarily relinquished; nd all that now remains s the copy-rightof herbook, the exclusiverightto print, reprint,andvend it. (UnitedStates2486)

The unresolveddoublenessof the slavewho is both personandthing,a subjectcapableof sentimentand an articleof property,serves well as the private-propertynalogueof the publictext.BecauseTom and Topsyare subjectto use andabuse,they arebetterable than Don Quixoteand Sancho Panza to representboth thepracticalambitionsof republican eadingand the radi-cal diminutionof libertythat accompanies he American egaldefense of the rightsof readers.Whilein its decisionthe courtrepresents oing-into-print s an act of voluntary urrender,hecost to Stowe s obliquelyacknowledgedn the implication hat,like the long-sufferingMrs.Shelby, he is helpless n the face ofa slavetransaction.24Whileby 1870Congresshad reserved o authorsthe rightto dramatize ndtranslateheirworks,Stowev. Thomas uggestshow far a market orbookscan developwithoutconfirmingherightsorpromotinghe economic nterestsof individual uthors.Indeed,giventhe strengthof the Americanresistance o foreignauthors'rights,which heldoff an international opyrightagree-mentuntil 1891, t seemsclear thatthedevelopment f a marketfor literaturen Americadependedon the suspensionof privateproperty ights n texts.Likethe defense n Wheaton .Peters, hepublishers,printers,and typesetterswho opposedinternationalcopyrightarticulated visionof a literarymarketplacehatoper-ated accordingto republicanprinciples-one in which profi-teeringwouldbe counteractedby the limitlessmultiplication feditions, radically expandingthe numberof individualswhocouldbenefit rom he saleof anyone text.Opponentsof interna-


32/39


tional copyright saw the decentralization of the literarymarket-place as an important hedge against the tyranny of centralizedpower.25The court's circumscription of authors' rights in Wheatonv. Petersprompts one to ask, as David Saunders has done; whatcritical desire motivates the erasure of this history, producing inits place a narrativeof the triumphant emergence of the rights-bearing author from within the market. Saunders is rightly criti-cal of the tendency to route cultural and legal history throughthe figureof the author, imagined as the idealized form of humansubjectivity.Indeed, the distortions produced by such a subject-centered history seem especially severe when projected onto acopyright system that explicitly rejects individual rights as itsground of value. But we should be equally wary of the explana-tory power of the economic insofar as it marks the vanishingpoint of both rhetoric and politics. To represent the history ofauthors' rights as the achievement of individual economic free-dom is, finally, to relinquish the nineteenth-century belief in theexistence of a public sphere that was not coterminous with themarket.

NotesEarlier versions of this essay were presented at the conference on IntellectualProperty and the Construction of Authorship sponsored by the Society forCritical Exchange in April 1991, and at the American Antiquarian Society inOctober 1993.1. With the exceptions noted below, recent scholarship has generally soughtto confirm Foucault's perception in "What is an Author" (1969) that a modernotion of authorship emergedsimultaneously with the consolidation of capital-ist market relations; see Woodmansee; Rose, "The Author"; and Jaszi.2. Twoimportantchallenges to Rose'sline of argumentmeritprominentmen-tion. Carla Hesse contests Rose'schronology, reaching back prior to the devel-opment of a market for books to locate the roots of French authors' rights inan attempt by the Royal Administration to curb the power of the Publisher'sGuild. Far from a figurewho is representativeof bourgeois individualism, theauthor for Hesse is the instrumentof the absolutist police state and the site ofcompeting revolutionary attempts to control the circulation of texts after theoverthrowof monarchical authority.Perhaps most importantly,Hesse tempersRose's contention thatcopyright was "essentiallya commercial struggle"("TheAuthor" 4) with the reminder that commercial arrangements are politicallycontested. David Saunders offers an excellent corrective to what he character-izes as a "subject-centeredschema of cultural history" (235). Saunders arguesthat the critical tendency to view the history of copyright through a naturaliz-ing lens-one thatcelebrates the achievement of authors' rightsas the apotheo-


33/39


sis of individual subjectivity-has all but erased the historical specificity oflegal systems.While I am in strong sympathywith Saunders's nterpretivefocus,his distinction between copyright systems and moral rights systems, and hiscall for increased attention to the institutions of book production, regulation,and distribution,I think he overstates the degree to which the institution of thelaw can be detached from the philosophical questions takenup in these debates.As I will argue below, not only does the federal court understand the free circu-lation of texts to be the ground and image of its authority,it seizes on statutorycopyright as a means of strengtheningits power against the competing claimsof state courts.

3. Throughout this essay I will be quoting from the transcript of the argu-ments of counsel and judges' opinions which was privately printed by RichardPeters in 1834. This version of the case differs from the officialaccount, whichcan be found in Peters'sReports, n a number of important ways.On the whole,the privately printed version is more expansive: arguments that are abbreviatedin Peters's official publication are written out in full; instead of being takenfrom the reporter'snotes, J. R. Ingersoll's argument in defense of Petersis takenfrom the copy that Ingersoll read at the hearing. Famously, Peters's officialaccount of the case omits Justice Baldwin'sdissent, which can be found in fullin the privately printed copy. Unfortunately, this text omits Thomas Sergeant'scomments (Peters, Reports 8: 638-651) and Daniel Webster's remarks (Peters,Reports8: 651-654). Unless marked otherwise, all citations will be taken fromthe privatelyprinted text-Report of the Copy-RightCase of Wheatonv.Peters.4. One way to mark the erosion of the republican model of authorship withinlegal discourse is to note the way in which the rhetoric of personality emergesat the turn of the century as a justification of the author's right to his copy.Justice Holmes's well-known opinion in Bleistein v. Donaldson Lithographing(1903) serves as a good touchstone for this change. In ruling on the copy-rightabilityof a series of chromolithographs, Holmes notes: "The copy is thepersonal reaction of an individual upon nature. Personality always containssomething unique. It expresses its singularity even in handwriting, and a verymodest grade of art has in it something irreducible, which is one man's alone"(United States 276). Holmes's definition of copyright as a personal right thatdepends upon the individuation of handwriting and his reliance upon an ex-pressive theory to ground the value of art signal a major departure from thelanguage of the constitutional copyright provision and the Copyright Act of1790, which justified the individual ownership of a printed text in terms ofthe public good, the disinterested and generalized "encouragement of learn-ing"(Solberg 32).5. For a thorough treatment of Wheatonv. Peters in its institutional context,including a history of the publishing of Supreme Court reportsand an excellentaccount of the internal politics of the Marshall court, see Joyce.6. For a discussion of the way in which, prior to the adoption of the U.S.Constitution, state copyright statutes "mingled public benefit rationales withnatural rights rhetoric"(97), see Ginsberg.7. The British press found the American fascination with Yates's argumentsunfathomable. As one reviewer noted, "it was strange to see the antiquateddoctrine of Mr. JusticeYates in Millar v. Taylor,which was refuted at the time


34/39


by the luminous intellect of a Mansfield, and has ever since been repudiated inWestminsterHall, revivedin a court of justice on the other side of the Atlantic"(Rev. of Report 192). Morton Horwitz'saccount of the post-Revolutionary de-mand for codification provides some ground for understanding the plaintiffs'reluctance to rely on Mansfield'sauthority.According to Horwitz, Mansfield'seffortsatjudicial reformraisedAmerican fears of the arbitraryexercise of judi-cial power. Mansfield's "luminous intellect" was rendered suspect by whatJefferson and others saw as his evasion of the letter of the law. Jeffersonwentas far as to associate Mansfield'sreasoning with an antidemocratic conspiracy,alleging that he sought "to render [the law]more uncertain under pretence ofrendering it more reasonable" (qtd. in Horwitz 18).8. The full significance of this detachment emerges when one considers that,although presentedas if at random, the watch, the table, and the guinea are allwhat Philip Fisher has called "model objects,"objects that in philosophical,theological, and economic writing have traditionally been used to exemplifythe relation of persons to things ("Pins"). Fisher identifies the watch as thedominant early-modern image of a self-contained world, the projectionof hu-man craftsmanshipin the image of divine craftsmanship. He also discusses thetable as its Platonic pr

the matter of the text

Documents