This month, on February 22, falls the 226th anniversary of the decision by Lords of England in the case of Donaldson v. Becket, 17 Parl. Hist. Eng. 953 (1774) in which the lords utterly rejected the absurd notion, which had been brought by the London publishers' lobby, that copyright was rightly perpetual under the common law, even after the passage of the "Act for the encouragement of learning" in the 8th year of Queen Anne. The lords voted twenty two to eleven to dissolve an injuction that had been brought against an Edinburgh publisher on the basis of the stationers' notion of common law. In effect, the lords rescued what we now call the public domain from oblivion-by-sophistry.

Among the 22 lords voting on the side of freedom (against perpetual copyright) was one Earl Spencer, presumably an ancestor of the late Princess. Voting to keep mankind in perpetual intellectual serfdom (i.e. for perpetual copyright) were the Archbishop of Canterbury (shame on him!) the Duke of Northumberland, and 9 others.

Some of the residents of Edinburgh received the news of the decision with "great rejoicing...upon victory over literary property: bonfires and illuminations, ordered though by a mob, with drum and two pipes." (I assume the "pipes" were bagpipes, though they might have been tabor pipes.) And in fact, the lords of the Scots Court of Session had anticipated the English lords' decision, finding in the case of Hinton v. Donaldson (July 28, 1773) that there was no copyright in the common law of Scotland, and hence the only copyright in Scotland was the limited copyright provided by the statute law.

These cases were only a temporary setback for the monopolists. Their centuries-long quest to restore the Star Chamber and the Stationers' monopoly will have nearly succeeded in the U.S. if the Database bill and UCC2B become law. On the other hand, if we can roll back the scope and duration of copyright to more reasonable levels than at present, we will make the world safer for the folk process. That would give us reason to celebrate our own "victory over literary property" with a bonfire and bagpipes.

T.