Honor Among Thieves: How 19th Century American Pirate Publishers Simulated Copyright Protection

From 1790 to 1891, the United States prevented foreign authors from obtaining domestic copyright protection, implicitly subsidizing a domestic reprinting industry. With foreign works a “free” and unprotected resource, American publishers created a system of voluntary norms, known as “trade courtesy” to create and enforce psuedo- property rights in uncopyrighted foreign works, simulating the effects of legal copyright protection. This paper analyzes this system using the Bloomington School’s Institutional Analysis and Design (IAD) framework to under- stand its effectiveness, and pitfalls, in managing the commons of unprotected foreign works in 19th Century America.

Institutional Entrepreneurship, Wikipedia, and the Opportunity of the Commons

Copyright laws traditionally attempt to incentivize expression and minimize free rider problems through legal restrictions, at the expense of closing off access to cultural history. However, entrepreneurial changes to institutions and the creation of alternative governance structures can allow for spaces that facilitate expression without resorting to the copyright approach. Wikipedia, the free online encyclopedia, stands as a highly visible example of such institutional entrepreneurship, leveraging copyright law *against* its intended purpose. This paper uses the Bloomington School's IAD framework to explain the success of Wikipedia's alternative model of managing a common resource of free encyclopedia articles, and suggests a roadmap for understanding the role of institutional entrepreneurship in crafting alternative governance structures to foster expression.

The Perils of Copyright Regulation

The most robust framework for understanding the evolution and consequences of copyright statutes in the United States is the dynamics of interventionism. I apply the framework of Kirzner’s (1985) perils of regulation to the general revision of copyright law in 1976, and explore its effects on entrepreneurship and discovery processes. Critics of copyright commonly recognize the distortions of rent-seeking, but I emphasize the utility of interventionism to explain the “unsimulated” and the “stifled” discovery processes set in motion by copyright interventions, which use legal processes to allocate resources, and deter future discovery by raising transaction costs.


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