BOOK REVIEW

     Vaidhyanathan, Siva. _Copyrights and Copywrongs: The Rise of
     Intellectual Property and How it Thwarts Creativity_.  New
     York:  New York University Press, 2001.  Pp. 288. Includes
     notes and index.  Cloth, 6" x 9"  $27.95.  ISBN 0-8147-8806-8.

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     Reviewed for the Mark Twain Forum by:

          David E. White <[log in to unmask]>
          St. John Fisher College

     Copyright (c) 2001 Mark Twain Forum.  This review may not be
     published or redistributed in any medium without permission.


Much historical and legal detail is crammed into a small space
here, and most of the prose is fired with a passion for the
kind of creativity the author believes is seriously threatened
by recent trends in the law of intellectual property, indeed
threatened by the very idea of intellectual property.

For Vaidhyanathan, Samuel Clemens turns out to be a dark force in a
white suit.  Clemens's wit and down-home common sense may have had
some validity in 1905, when his dialogue on copyright reform
appeared in _North American Review_, or the following year, when
Clemens made his dramatic appearance before the Congressional Joint
Committees on Patents, but today's apologists for what
Vaidhyanathan calls thick copyright are guilty of quoting Mark
Twain out of historical context.  For example, at least one
"intellectual property" law firm even features the 1906 testimony
before Congress on their website as if it were a press release prepared
with today's circumstances in mind.

"Mark Twain and the History of Literary Copyright" is only one of
five main chapters, but it takes up nearly one fourth of the
whole book.  A little less than half of the chapter on Twain is
devoted to a sketch of the historical background that formed
Twain's views, and most of the rest of the chapter is devoted to
an analysis and evaluation of "The Great Republic's Peanut
Stand."  This is especially welcome since at present "Peanut Stand"
can only be read in manuscript at Berkeley (or by specially ordered
photocopy) and has not been more than briefly mentioned in other
secondary literature.  There seem to be no specific plans for
publication of the full text beyond what is necessary (ironically
in this context) to preserve rights to "Peanut Stand" itself.

Vaidhyanathan's purpose, as far as Twain is concerned,
is to show how important Twain's contribution was to
the formation of the current law on intellectual property,
to show how important "Peanut Stand" is for understanding
Twain's views, and then, most importantly, to show how
misguided Twain's sentiments turned out to be and what a
threat they pose to the very creativity Twain prized.

This thick soup of fact (with almost forty pages of notes in the
review edition) is garnished with a few comedic delights, for
example, the note in which Vaidhyanathan resists the temptation
to leave his section on plagiarism unattributed and declares instead
that "some of the ideas expressed in it are mine, and others are not."

Since Twain and Vaidhyanathan both lack legal and philosophical
credentials, they may be equally unqualified to debate copyright
legislation measured against the eternal principles of justice.
In his 1907 testimony to Congress, Clemens admits he is no legislator
and then, almost without missing a beat, appeals to the Eighth
Commandment as if the divine injunction against stealing settled
the question of copyright beyond any reasonable doubt.  No doubt
the religious invocation was somewhat jocular, but the heart of
his case, as with some of the most sophisticated philosophical
views, is essentially an insistence that a "thing is what it is
and not another thing."

As a professional writer who really did need to make a living
by the toil of his pen, and really did need to provide
for his daughters, Twain simply could not understand why
those who work in other professions would universally assume
that their property was theirs but his property was everyone's.
What is it about intellectual property that makes it somehow less
really private property than, say, real estate (Twain's favorite
analogy) or anything else that you or I might happen to own?

If there is one blind spot in Vaidhyanathan's argument, it is that
he fails to see that whereas the harm done by thick concepts of
intellectual property can perhaps be used effectively as the thin
end of a wedge intended to challenge the priority of private
property over other rights and other goods, it is devilishly
difficult to answer Twain's demand for an explanation of why
intellectual property is singled out as an exception to the usual
safeguards set up around what an individual has created,
discovered or otherwise lawfully come into possession of.

Vaidhyanathan undoubtedly deserves credit for publicizing a
generally neglected work by Twain, but his two-sided claim that
Twain's views are of major significance in the history of
copyright and that their influence has been decidedly on the
wrong side requires some detailed examination.  That one has
staked a claim by no means entails that one has discovered a gold
mine.

Whatever its few faults, _Copyrights and Copywrongs_ is artfully
organized to present the author's case to best advantage.
Chapter 3, immediately following the principal chapter on Twain,
includes a section on the "Death Disk" case, in which Twain
mooched off of Carlyle only to have his own work appropriated by
D. W. Griffith.  Surely this is a fitting coda to the chapter on
Twain's "Peanut Stand."

Vaidhyanathan's initial claim to have "discovered" the "Peanut
Stand" has been laid to rest (and is disposed of in a note) so
that now only his mother believes him to have made such a
discovery, but the earlier claim of physical discovery is now
replaced with a much grander claim of critical discovery.  This
manuscript, Vaidhyanathan tells his readers, "represents a major
move within Twain's intellectual journeys: from story-teller to
political essayist; from western tenderfoot to international man
of letters; from poet to philosopher." (p. 69) If there is even
a fraction of truth in this claim, then surely we have in
_Copyrights and Copywrongs_ the expose of a major scholarly
scandal.  The geographical equivalent would perhaps be for
generations of scholars to have poured over maps of the U.S. that
somehow failed to note the existence of the Mississippi River.

Once Vaidhyanathan begins his detailed discussion of  "The Great
Republic's Peanut Stand," he moves to the far more modest claim
that it is Twain's "only extended dissertation on copyright
theory." (p. 70)  The rest of Twain's writings on copyright are
"uncohesive" and contain "many gaps," until we look at the
"Peanut Stand."  If the former hyperbolic claim can be made at
all, surely this lesser, but still striking, claim merits some
close attention.


ABOUT THE REVIEWER:  David E. White teaches media ethics in the
philosophy department at St. John Fisher College, Rochester, NY.
White is a founding member of the Mark Twain of Rochester
discussion group.  This is his first review for the Mark Twain
Forum.