Of the Injustice of Counterfeiting Books

In a book, as a writing, the author speaks to his reader; and he who printed it speaks by his copies not for himself, but entirely in the name of the author. The editor exhibits the author as speaking publicly, and mediates only the delivery of this speech to the public. Let the copy of this speech, whether it be in handwriting or in print, belong to whom it will; yet to use this for one's self, or to traffic with it, is a business which every owner of it may conduct in his own name and at pleasure. But to let any one speak publicly, to publish his speech as such, means to speak in his name, and, in a way, to say to the public:

"A writer lets you know, or teaches you, this or that, etc., through me. I answer for nothing, not even for the liberty, which the writer takes, to speak publicly through me; I am but the mediator of the writer's thoughts coming to you."

That is no doubt a business which one can execute only in the name of another, and never in one's own (as editor). The editor furnishes in his own name the mute instrument of the delivering of a speech of the author's to the public;² the editor can publish the said speech by printing, which consequently shows himself as the person through whom the author addresses the public, but he can do so only in the name of the author.

The second point of the minor is: that the counterfeiter undertakes the author's business, not only without any permission from the owner, but even contrary to the owner's will. Given that he is a counterfeiter because he invades the province of another, who is authorized by the author himself to publish the work: the question is, whether the author can confer the same permission on yet another, and consent thereto. It is, however, clear that, as then each of them – the first editor and the person afterwards usurping the publication of the work (the counterfeiter) – would manage the author's business with one and the same public, the labour of the one must render that of the other useless and be ruinous to both; therefore a contract between the author and an editor that contains the corollary, to allow yet another besides the editor to venture the publication of the author's work, is impossible; consequently the author was not entitled to give the permission to any other, [including by implication a] counterfeiter), and the counterfeiter should not have even presumed this; by consequence the counterfeiting of books is a business totally contrary to the will of the proprietor, and yet undertaken in the proprietor's name.

From this ground it follows that not the author, but the editor authorized by him, suffers damages. For as the author has entirely, without reservation, given up to the editor his right to the managing of his business with the public, or to dispose of it otherwise, so the editor is the only proprietor of the transaction of this business, and the counterfeiter encroaches on the editor, but not on the author.

But as this right of transacting a business, which may be done just as well by another, is not inalienable (jus personalissimum), assuming that no corollary exists otherwise in the author's contractual agreement with the editor, so the editor, as he has been authorized to have power over the work, also has the right to transfer his right of publication to another; and as the author must consent to this, he who undertakes the business from the second hand is not a counterfeiter, but a rightfully authorized editor, i.e. one to whom the editor, who was appointed by the author, has transferred his power over the work.

II. Refutation of the Counterfeiter's pretended Right against the Editor

The question remains still to be answered: since the editor projects to the public the ownership over the work of the author, does not the consent of the editor (and by implication also the author, who gave the editor legal control over it) to every use of the work, including reprinting it, result automatically from ownership of a copy of the work, such that such consent is automatically furnished to whoever purchases a copy of the work, however disagreeable such consent to permit counterfeiting may be to the editor? For the prospect of profit has perhaps enticed the editor to undertake, with the risk of having the published work counterfeited, the business of editor, where this risk is more likely since the purchaser has not been excluded from counterfeiting via an express contract, because it would hurt the editor's business if the editor tried to obligate all potential purchasers of the work to agree to a contract forbidding counterfeiting, because potential purchases would generally not consent to such an agreement and therefore would be less likely to purchase a copy of the work. My answer to this question is that the ownership of the copy does not furnish the right of counterfeiting. I prove this by the following ratiocination: