I begin with a flourish of disclosure, which gives me great pleasure as a gesture of wistful recollection.  Professor Baldwin was my roommate at university, occupying the bunk above mine.  The wall space over that prisonlike fixture of canvas ticking and rude ironmongery was decorated with an enormous portrait of Karl Marx that would not have looked out of scale over the desk of a Soviet collective farm chairman.  Either my neighbor’s Marxism was a playful sham, designed solely to get my goat, or else it has greatly abated since our college days, because in this, his latest book, I find no evidence of subversion beyond the modicum required for the writing of intelligent prose.

There is yet another possible explanation, which is that my own attitude to Marx has changed in the intervening twoscore years.  The epoch’s geomagnetic reversals have stripped the core of Marx’s delusions and insights of the propaganda varnishes and glues of Soviet totalitarianism, which had only slightly more historical or intellectual justification for using his face and name on its credal symbols than it might have had for using Feuerbach or Ricardo, or for that matter Zoroaster or Buddha.  The remaining kernel is still something of a hard nut, but I wonder whether much of our residual hostility to old Karl does not come from a perfectly natural desire to shoot the messenger.  However avidly he fantasized about authoring a political cataclysm, Marx was only an author, scarcely to blame for the envy, the jealousy, the cruelty, and the stupidity that lie at the heart of what has happened to the world since 1914.

One of the reasons we want to shoot Marx is his view of private property, a juridical concept he sought to relativize out of existence.  What Marx did to the concept of property, in fact, is the exact reverse of what plastic surgery has done to the body of modern womanhood.  The nose, the eyes, the lips—these were once a woman’s God-given endowments, and to alter them, apart from a dab of bismuth or rouge, was as unnatural as it was unthinkable.  They were simply not ours to change.  Now they have become our despotic property, to do with what we will, and a court injunction on anyone who says otherwise.  Seen in this light, abortion likewise represents a seismic shift in the view of possession.

By contrast, Marx sought to disenfranchise the owners of private property in a fundamental way, and logically it follows, inter alia, that a good Marxist can never accept cosmetic surgery or abortion on demand, since a woman’s body is not her own, but belongs to the omnipotent state for the common good of humanity.

Much of this is something of a conundrum, psychological as well as philosophical and political.  The editor of this magazine, Tom Fleming, has written here, repeatedly and eloquently, of the vanishing castle that was once a man’s home, and the very discrepancy he apostrophizes—between what is within living memory and what, sadly, is—points to the conundrum as it is perceived by the generation now living.  Without belaboring the point or stooping so low as to call Dr. Fleming a Southern slaver, a Sophist—indeed, a Marxist—might point out that, to his recent ancestors, slavery must have seemed the most natural thing in the world.  It seemed so to mine, who lived in Russia before the czar’s Emancipation Proclamation of 1861, a revaluation of moral values which they rightly perceived as a forcible expropriation of their private property.

Are we freeholders or leaseholders of our homes, of our treasures, of our bodies, indeed of our lives?  Do we own what we own absolutely, or merely hold some conditional rights to it by the grace and favor of our society, government, or ruler?  Can we own our chattels despotically and in perpetuity, or is our domain encroached upon by changes in public opinion, revisions of religious dogmata, or even simple accidents of history?

Professor Baldwin acknowledges the primacy of this query in the introductory pages of his treatise, when he writes,

The right to property was defined in 1765 by the great British jurist William Blackstone as “that sole and despotic dominion” exerted by owners over their belongings “in total exclusion of the right of any other individual in the universe.”  In 1804 the Napoleonic Code embodied this view in statute, describing property as “the right of enjoying and disposing of things in the most absolute manner.”  Despite such bravado, over the following two centuries European, British, and American law leached away at the pretensions to absolute dominion entertained by the owners of conventional property.  Everywhere property has been ever more subjected to restrictions imposed by the state as the ultimate regulator.  From nuisance laws to rent regulation, from zoning codes to health-and-safety rules, from taxation to outright takings, conventional property—the state has made clear—is possessed on society’s premises and only insofar as private ownership is compatible with broader social objectives.

Baldwin unfolds an absorbing panorama of the evolution of the continental European and American attitude to property, which, during the three centuries of the book’s subtitle, has increasingly meant consciousness of the intangible:

Land was the ultimate source of power and prestige in the Middle Ages.  But the French Revolution’s expropriations demonstrated that, as immovable, it had nowhere to hide and was vulnerable to changing political circumstances.  For a while urban property supplanted it in importance as growing cities concentrated wealth in the hands of a new landlord bourgeoisie.  But as new democratic movements—facing housing shortages early in the twentieth century—responded to their voters and imposed rent moratoria and controls and otherwise restricted rights, urban property owners too discovered the limits of their free control.

Elsewhere he notes that

Already in 1863 the Scottish economist Henry Dunning Mac leod classified most wealth as incorporeal: the franchises of ferry, railway, telegraph and telephone companies, as well as patents, trademarks, goodwill, and annuities. . . . Today, over 40 percent of the market value of American companies is intellectual capital.

It is against this background that the story of the American intangible that Baldwin terms “copyright” and its continental European counterpart, which he terms “authors’ rights,” is told, and I hardly exaggerate when I say that the story leaves the reader breathless.  It is not only that the range of the author’s erudition is as broad as the back of a Volga boatman, but that this book succeeds in reflecting, in its tiny puddle of a specialized subject, much of what has happened in Western thinking since the French Revolution.  I cannot do it justice in a brief review, because every page is a veritable kaleidoscope of historical fact, astute ratiocination, and counterintuitive paradox, a pattern as dazzling as it is bewitching.

Baldwin shows that, like the woman’s body in my example above and unlike the man’s castle in Dr. Fleming’s, intellectual intangibles have become more, not less, inalienable from their owners.  It is as though civilization, following some Darwinian principle of evolutionary survival, focuses on the next big thing in its course of development and holds it to be more real than the rest, much as real estate was once held more real than stock dividends.

The belated signing by the United States in 1989 of the 1886 Berne convention on authors’ rights established a global consensus, whereby two divergent, yet in a way complementary, views of intellectual property, the Anglo-American and the continental, were amalgamated into something like a transatlantic accord, America finally accepting the European model:

Once a culture importer and therefore a copyright pirate, the United States had since become the world’s largest exporter of content.  Impelled by its content industries—emblematically represented by Hollywood—America now crept to the cross of the Berne ideology. . . . [I]t abandoned its traditional view of copyright as a temporary monopoly to encourage authors [and] adopted the European view of works as a form of property, entitled by natural right to long and strong protection.

The internet has since made mincemeat of that consensus, and the news value of Baldwin’s book is in fitting this 21st-century conflict between cultural producers and cultural consumers into an historical context to show that the order of battle for both combatants was drawn centuries before the invention of electricity.  Reviewing the book in The New Yorker, Louis Menand devoted the bulk of a mammoth article of 5,000 words to the tug of war between copyright and internet, with scarcely a word about the book itself as the kind of intangible product that all the fuss is about.

It is this imbalance, caused by modernity’s obsession with itself and with its baldly alleged uniqueness, that I have attempted to redress here.  What are old college buddies for, after all?


[The Copyright Wars: Three Centuries of Trans-Atlantic Battle, by Peter Baldwin (Princeton University Press) 535 pp., $35.00]