Siva Vaidhyanathan. Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens 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.

The following review appeared 21 October 2001 on the Mark Twain Forum.

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This review may not be published or redistributed in any medium without permission.

David E. White
St. John Fisher College

Commissions are donated to the Mark Twain Project

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."

The initial claim by others that Vaidhyanathan "unearthed" the "Peanut Stand" has now 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.