Ever since the SOPA/PIPA blackout last month — which I am pleased to report performed precisely as designed; score one for democracy! — I’ve been consumed with curiosity about the precedent for both this type of lawmaking and this type of protest.

It’s a bit of a cliché at this point to point out that the Walt Disney Company essentially owns American copyright law; whenever Mickey Mouse (created in 1928) threatens to move, over time, into the public domain, Disney has lobbied Congress to extend the legal span of copyright. So within progressive circles, copyright has been often been regarded as a weapon that corporations wield against culture. For example, although SOPA and PIPA are dead for now, a proposed international copyright treaty — ACTA, the Anti-Counterfeiting Trade Agreement — has already been signed by the United States and is currently making the rounds in Europe. Negotiated completely in secret in closed sessions between lawmakers and media corporations, it is considered by some to be even more dangerous to a free and open Internet than SOPA/PIPA.

So in researching historical precedents, I was intrigued to read the following, in an 1877 collection of essays by Nathaniel Southgate Shaler:

In the last days of this late distracted session of Congress a stealthy effort was made to push through the legislative ways a bill that would have practically abolished the limited monopoly of inventions granted by our present patent laws. This measure passed unquestioned through the House, and was only arrested in the Senate by the vigorous resistance of a few men from without its walls. As this scheme has the backing of several strong corporations…it is sure to be revived in the next session of the national legislature.

The dangerous, secretive bill of his time was one that apparently would have abolished restrictions on intellectual property!

I’m not certain what bill in particular Mr. Shaler is referencing here, since the latter half of the nineteenth century was absolutely littered with patent, trademark, and copyright legislation. Patent law was created to preserve the rights of an inventor to the profits derived from his invention, without fear of the invention being duplicated by a rival; trademark law, the same for brand names (essentially to prevent counterfeit goods from being sold under a reputable name); and copyright law, the same for works of creative expression such as books, plays, and music. The three forms of intellectual property are nowadays often bundled together as far as legal rights are concerned, but it wasn’t always so.

The patent law in effect as of 1870 provided patent protection to an inventor for seventeen years from the date of filing. Earlier, the grant of patent was for only fourteen years, but the holder of a pre-1861 patent could personally petition Congress for an additional seven-year extension, in what was surely the least efficient process imaginable. Occasionally there came to Congress a petition for a further extension based on extenuating circumstances — here’s a Congressional transcript from 1873 in which Lyman Trumbull, in his last year of office after 28 years in the Senate, wearily objects to this practice: “Every man who has a patent will come here with his claim to have it extended. He will bring his affidavits that he has not made as much as he thinks he ought to have made by his discovery; somebody has litigated with him perhaps, or there has been some objection… It is time it was stopped.” (Patents nowadays generally last for 20 years.)

Despite Mr. Shaler’s claims, patents and intellectual property in general were treated very seriously by lawmakers at the time. In the 1870s there was a furious debate about whether Congress had the constitutional power to administer trademarks at the federal level (since only patents and copyright are mentioned in the Constitution), and when the Supreme Court decided in 1879 that it was in fact not constitutional, a constitutional amendment to give Congress that power was immediately proposed by junior Iowa Senator Moses A. McCoid.

In debate, Georgia’s Nathaniel Hammond declared the amendment frivolous by asserting that the stability of the Constitution, and its assignation of such rights to the individual states, was “like the sun, grand, majestic, glorious — but out of its orbit, whether by force, legislative or judicial, centripetal or centrifugal, it makes of our system chaos and blazes but to burn.” [Citation] 

McCoid responded, in part (emphasis mine):

The lion’s skin may become too short. We are stretching our limbs; we are expanding our lungs; we are extending our territory, increasing the number of our States, extending new lines of railway, stretching telegraph wires across plains and mountains; we are swarming above and talking beneath the seas; we are overcoming new difficulties and contriving new forces and instruments of enterprise, and the giant form which is thus growing to manhood can not lie within the narrow confines of the cradle of its infancy. [...]

The Constitution, Mr. Speaker, is not a mummy of unchangeableness laid away in the pyramid of our reverence for our fathers, but the plastic charter for a living, growing, ever-changing people… [Citation]

Spoiler alert: the Constitutional amendment never went anywhere. Congress did pass a federal trademark law in 1881 based on a creative interpretation of its power to regulate interstate commerce, but modern trademark law as we understand it today wasn’t codified until the Lanham Act of 1946.

But until the 1881 act, there was an interim during which there was no system of federal trademark regulation. This meant that the government had to repay $210,000 in trademark fees collected between 1870 and 1879. They had to pay back $25 per filing to 8,400 people. And trademark law remained an issue regulated by individual states — meaning that you could potentially file a trademark in California that wasn’t valid in Oregon.

Two more minor points of interest in this debate. One of Senator Hammond’s reasons for opposing the constitutional amendment was that he did not believe trademarks were as worthy of protection as copyrights and patents:

Suffer me to call attention to this effort to give a dignity and importance to trade-marks to which they are not entitled… The author spends a lifetime of seclusion and study that he may write a book. He is frequently not rich, but poor; not honored, but despised. A copyright but protects from piracy that which, while it may support him, blesses his race. The scientist or inventor constructs in his brain what no other mind can produce. To perfect his projects costs time and toil. To-day he is buoyant with hope, to-morrow in despair. Capital opposes his innovations; ignorance fights him. He may be driven from home, as was Fourdrinier from France, for inventing the paper-making machine, or Jacquard from Lyons, for improving weaving machinery. It is right that genius should be protected and rewarded. And yet so opposed were our fathers to monopoly that to these benefactors of mankind they gave constitutional protection only for “a limited time,” in consideration of public use of their inventions, etc., in all future time.

But what thought or study, what toil or risk, what care or expense to the capitalist was involved in such trade-marks as “the shirt,” “exactly twelve yards,” “Bismarck” (collars), “genuine Yankee soap,” or “Mrs. Winslow’s soothing syrup”? Why should they be protected and forever? [Citation]

To which McCoid responded, with an amusing bit of theatrics:

The gentleman from Georgia seems to think the subject a trivial one, and not of sufficient importance to justify this action; and in his attempt to belittle it he talks of the protection of “Winslow’s Soothing Syrup” and such things as that. I wish to remind the gentleman, in order to relieve his mind from that attempt to belittle the subject, that he justifies and eulogizes our fathers for placing the copyright clause in our Constitution; but he might, with a like spirit of unfairness, as well have ridiculed them by referring to these copyrighted works I have before me [holding them up] — the “Dashington Brothers’ Negro Song-Book,” the “Pitcher-of-Beer Songster,” the “Sullivan and Harrington Sweet Jerusha Jane Songster,” “Lottie Grant’s Tired of Single Life Songster,” “Mother Goose,” “Weston Brothers’ Laughing Chorus,” and “Jenny Jones’s Songster.”

A Member: Do not forget “Jack, the Giant-Killer.”

Mr. McCoid: I will include “Jack, the Giant-Killer,” as the gentleman suggests, and I might mention many others. [Citation]

>>> IMPORTANT ASIDE: If you are at Brown University, you need to go to the library and examine what may be the only existing copy of “Lottie Grant’s Tired of Single Life Songster” and report back.

Hammond also opposed a bill that detailed harsh penalties for counterfeiters and violators of trademark:

Those sections punish every person who deals in or sells or keeps or offers for sale or procures the sale of goods covered by a colorable imitation of a trade-mark, or puts a trade-mark on goods made to imitate trade-mark goods, or fills a bottle or box covered by a trade-mark with an imitation of its intended contents, etc… The punishment is a fine not exceeding $1,000 or imprisonment not more than two years, or both such fine and imprisonment. [...] Have the gentlemen thought of the severity of this punishment? [...]

Four men, convicted of illicit distillation, left the bar of a United States court for the penitentiary in Albany simultaneously. One was rescued by a pardon; death relieved the keeper of the custody of the other three…

I am told the laws would not be enforced, but are needed to prevent the crimes. The advocates of the bill would invoke the majesty of the United States to frighten citizens. No such spirit breathes from the Constitution. If you would not have laws despised, pass none which you will not enforce. Make laws to provoke love, not to excite terror. [Citation]

This strikes me as similar to contemporary debates about the penalties for intellectual property “piracy.” According to the official RIAA website:

Making unauthorized copies of copyrighted music recordings is against the law and may subject you to civil and criminal liability. A civil law suit could hold you responsible for thousands of dollars in damages. Criminal charges may leave you with a felony record, accompanied by up to five years of jail time and fines up to $250,000.

Meaning, as has been pointed out by many people, you could go to jail for five years for pirating a Michael Jackson song, or one year longer than the doctor who killed him.

Tomorrow: The debate over foreign copyright as it pertains to literature! It’s more interesting than it sounds, I promise. At least…to me

(Flickr photo by Tau Zero)

Over the weekend, the Wondermark calendar marked the eldritch holiday Y’haug’f’than, the day long foretold when forces beyond the imagination or comprehension of mankind crest a horizon of madness and slowly wind down the minutes remaining for all of human existence.

I’ve long felt that Y’haug’f’than is becoming a bit commercial of a holiday, so in an effort to respect the roots of the tradition by subjecting myself to deliberate pain, I underwent hernia surgery:

What about you? Leave a comment and tell us how you commemorated the weekend the air turned to ashes and our still-screaming flesh was melted from our brittle bones!

(Next holiday we will observe: February 30: Imaginary Day)

Marksman Kevin S. send in this very funny video:

…Which reminds me of this:

…And no beard-madness theme would be complete without the inclusion of this classic Kids in the Hall sketch.

UPDATE: Thank you for all the supportive messages during the blackout. The NY Times reports that several dozen lawmakers have publicly shifted their opinions on the bills today, and when I called and talked to staffers for my two senators and my representative, nobody sounded too thrilled about the bills in their present form. So, we won? For now, anyhow, until the spotlight moves onto something else and the lobbyists go right back to work. The press that the blackout has generated is great, but we mustn’t forget that this kind of nonsense gets pushed through Congress all the time.

Wondermark will shut down on January 18th as part of the national Internet strike protesting two bills under consideration in the U.S. Congress, H.R.3261 (the “Stop Online Piracy Act”, or SOPA) and S.968 (“Protect IP Act”, or PIPA).

You may have heard about the general strike (among the sites taking part are Wikipedia, Reddit, and Boing Boing), or about SOPA and PIPA. If you haven’t, here’s the general idea:

Massive entertainment companies, mainly movie studios, have presented these bills to Congress as a means to curb online piracy of their content. But the bills are written in a very broad, dangerous way.

To combat the problem of movie piracy, SOPA and PIPA give the government the power to firewall the entire U.S. internet.

This is like planting dynamite under a busy highway bridge in order to catch fleeing burglars, then handing the trigger to someone who hates cars.

What’s likely to happen?

• What burglars there are, will take another route. (SOPA/PIPA do not target pirates, but rather sites that link to alleged piracy. Real pirates can easily sidestep the restrictions.)

• Law-abiding business trucks, scared of the dynamite, will ALSO take another route. (The huge legal and financial burden of compliance with the new law will discourage startups, stifling independent businesses based in the United States.)

• The dynamite is likely to go off whenever the trigger person sees anybody who looks slightly suspicious — burglar or not. (Claims of “piracy” could be used as a weapon against websites to silence them for competitive or political reasons.)

Despite the fact that nobody in Congress can agree on health care, the budget, or anything else, bought-and-paid-for politicians from both sides of the aisle have lined up to defend these bills. It’s pretty disgusting. Movie piracy is simply not more important than the safety and integrity of the entire Internet, which is my whole livelihood.

Don’t take it from me, though. You can read more about the details of SOPA and PIPA here:

• An Overview of SOPA/PIPA [Infographic]
• A technical examination of SOPA and PROTECT IP [Reddit]
• Why Canadians Should Participate in the SOPA/PIPA Protest

As of this writing, a Senate vote on PIPA is planned for January 24, and the House of Representatives intends to continue markup on SOPA in February. So the time to act is right now.

What’s the point of the strike?

It’s to say, “Imagine what the Internet could look like if this level of censorship were legal.” Sites you visit every day could be blocked at the DNS level, making them essentially unreachable. If this is your first introduction to SOPA and PIPA, the strike is to let you know that it’s a real problem, and to solicit your help on behalf of internet users and content creators everywhere.

I rate myself highly cynical when it comes to the government. I’ve had firsthand experience with being completely blown off when I’ve actually taken the time to write to my members of Congress. Once, I wrote letters to both my senators, opposing an issue that both of them were in favor of. I received a form letter back reading “I, too, am in favor of this issue! Thank you for your support!”

So I know that it’s farfetched to claim that our members of Congress will even listen to us. But here’s the thing: these bills need to become toxic. They need to become political nitroglycerin. And that has everything to do with the lawmakers’ perceptions of public opinion.

If our members of Congress learn that supporting bills like this gets them a ton of angry phone calls, maybe they’ll think twice. We hope by calling them en masse, we can at least get some of them to realize there’s more to the issue than the bullet points they’ve been spoon-fed by lobbyists.

If they know that opposing bills like this gets them a ton of supportive phone calls, that’s food for thought as well. So if your representatives are opposed to SOPA/PIPA, call them too and let them know you’ve noticed, and that you appreciate it.

If your representative is undecided, that’s fine, because that means they haven’t cast their lot yet, or don’t realize how big an issue it is. This is your chance to let them know that the proper course of action is opposition.

Since Reddit will be down for the strike as well, I’m sure they won’t mind if I copy some info from a thread there about how to call your Congressperson:

From my experience: A staffer answers the phone. Say, “Hey, my name is [full name] and I live in [City], [State] [Zip] and I just wanted to express my opposition to a bill that [Congressperson] will be voting on soon: the Stop Online Piracy Act [if Representative] / the Protect IP Act [if Senator].

“There are extreme flaws and loopholes in the bill that could seriously harm the freedom of individuals, impact small businesses, and silence political speech on the Internet, and I wanted to ensure that [Congressperson] is aware of how dangerous this bill could be for his/her constituents. His/her willingness to go along with it is extremely surprising, considering his/her strong pro-liberty, pro-small-business beliefs,* and I’d like to ask him/her to reconsider his/her position.”

In my instance the staffer was really polite and said she would forward the message on to my senator, and recommended I request to schedule a meeting via my senator’s website. In the meeting request, I just basically repeated what I said above. Don’t worry what may happen if your meeting request gets accepted, I can’t imagine it would.

* I embellished this sample script a bit. But you catch more flies with honey, etc.

If you’re on the Internet as much as I am, you’re probably tired of hearing everybody talk about this, and secretly believe that the threat is hugely overblown. To be honest, I hope it is.

But I am also intensely curious to know if our democracy actually works. Can a legion of individuals contacting their members of Congress actually change minds? Or are we all just ignorant chickens bobbing about in our coop while the farmers do as they please? I don’t know that I’ve ever seen a more concerted, focused effort to test the theory that we in the U.S. actually live in a representative democracy.

I urge those of you in the U.S. to please call your representative and your senators today, and those of you outside the U.S. to help spread the word in other ways — because where the U.S. goes, the rest of the world may follow soon enough.

• Where Do Your Members of Congress Stand on SOPA and PIPA?
• Find contact info for your members of Congress

Wondermark returns Thursday with a new comic for your trouble. It will contain…jokes

Click the image for a closer look:

Here is a new greeting card for Valentine’s Day (or other occasions as you see fit)! It is available in my Monocle Poppers™ shop right this very second. (I’ll be getting them from the print shop next week, and will ship them out ASAP).

Also in the shop are all these other cards that you may enjoy as well!