Why Should We Care What Jefferson Thought About Copyright?

Terry Hart, over on Copyhype, asks (and tries to answer) the question. According to Hart, nobody should; referring to his famous 1813 letter to Isaac MacPherson – a letter I (and many others) have called a “foundational document” for US intellectual property law — Hart writes:

[Jefferson’s] points have little relevance to copyright. . . .While the case for Jefferson’s influence on patent law is subject to debate, the case for his authority on informing copyright law is decidedly weak. . . . Given Jefferson’s virtually nonexistent role in influencing early US copyright law, his views should be given similar influence today.

Perhaps more importantly, we should be sure we understand what exactly his views were. There is no evidence that Jefferson had any sort of idealized notion of copyright that is inconsistent with modern copyright law; according to Hughes, “if we objectively survey all of Jefferson’s writings, we find that his views on what we now call intellectual property were, to be generous, ‘nuanced’ or perhaps ‘fluid.’” In this regard, a letter written in 1813 about patents isn’t very helpful.

I’ve got a different — and much more straightforward — answer to that question. Why should we care what Jefferson thought about copyright?

1. Because he’s Jefferson. I don’t know about you, but I care about — as in, I’d like to know more about — Jefferson’s views on damn near everything. Jefferson had more interesting thoughts about a more diverse range of subjects than any other person in history – I don’t even think there’s any serious competition on that front. So if I were interested in metalworking, I’d be interested to know what Jefferson thought about metalworking. If I were interested in gardening, I’d be interested to know what Jefferson thought about gardening. If I were . . . you get the idea. I’m interested in copyright. QED.

Now, Jefferson also probably had more nutty and bizarre thoughts about a more diverse range of subjects than any person in history. He was no prophet, and he was hardly infallible. Part of the fun, with Jefferson, is weeding out the crazy (we need a new Constitution every 19 years; mammoths are not extinct, but are in fact still roaming the Ohio forests) from the brilliant (um, that’s a long list …read my book). There’s a good deal of both, in the land of Jeffersoniana. But I’m not going to dismiss his ideas on anything until I know what they were and turn them over in my mind a bit.

2. Because he was smarter than you, or I, or anyone else currently commenting on intellectual property matters.

3. Because he was the first person in history to articulate, in one document (and a short one, at that) the foundational theory of intellectual property. Take that paragraph from the MacPherson letter that Hart quotes:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

Every intro text in IP law builds on this insight, though with different language. The objects of protection in IP law are (a) “non-exclusive” and (b) “non-rivalrous.” If anyone can point me to a better, more concise, or more insightful articulation of these central features the central dilemma of intellectual property, (or any articulation from a date earlier than 1813) I’d be really interested to see it.

4. Because if you understand the MacPherson letter — not “agree with it,” necessarily, but understand it — you will, perforce, understand a great deal about intellectual property law. [It ain’t easy, by the way – it took me months, when I was writing my book, to actually figure out what the hell he was talking about; all that stuff about Oliver Evans’ patent, and the construction of mills and “hopper boys,” and the rest of it … but they were months very well spent. I saved you the trouble of doing that, in the last chapter of my book – and these are the thanks I get!]

5. Because the MacPherson letter articulates — once again, astonishingly, (a) for the first time in history (as far as I can tell), and (b) better than anyone else has ever done subsequently — the notion that intellectual property law is “social law,” and not “natural law.” In my view, this is of the most profound importance. Here’s what I wrote in that speech that Hart refers to:

Protecting the freedom of expression was a task of the very highest order, in Jefferson’s view, because freedom of expression was a natural right, belonging to all. It is not given to us by law, nor is it derived from law. It is just in the “nature” of things, part of the way the world is constructed, derived not from the laws of Man but “the laws of Nature and of Nature’s God”: if you bring two human beings together, they will think, and they will attempt to communicate with one another about what they are thinking. They’ll do that without any law to help them. Humans communicate with one another not because the law enables them to do so; they communicate with one another because—well, because that’s the kind of beings we are, and that is what is in our nature. Law’s job is not to enable that communication, but to protect it when it does occur.

Copyright, though, is different. Copyright is what Jefferson called – and I believe he was the first person to point this out and make this distinction — “social law.” Copyright does not derive from the nature of things, from the way the world is, or is constructed, because it is in the nature of things that ideas move freely from one person to another. As he memorably put it in an 1813 letter that has become one of the foundational documents for intellectual property law in the US:
If nature has made any one thing less susceptible than all others of exclusive property, it is the “idea.” That ideas should freely spread from one to another over the globe seems to have been particularly and benevolently designed by nature. Ideas are like the air we breathe – incapable of confinement or of exclusive appropriation, and expansible over all space.

The only way to keep an idea to yourself is to . . . well, to keep it to yourself. The moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Once it gets loose, it is like the air we breathe, expansible over all space, incapable of confinement.

And, like fire, ideas don’t get “used up” as more people use them: The peculiar character of ideas is that no one possesses an idea the less because others possess more; he who receives an idea from me receives instruction himself without lessening mine, just as he who lights his candle at mine receives light without darkening me.

Copyright, in other words, doesn’t come from the laws of nature, it comes from the laws of man. It is not, like freedom of expression, antecedent to the law, but entirely dependent on it.

What difference does all this make? A great deal. It does not mean that we should get rid of copyright law –it’s not an anti-copyright (or pro-copyright) notion. But it does mean that copyright law should always serve free expression, and not vice versa. It means that when these two great forces come into conflict with one another – and as I said, they do with some frequency nowadays – we know where we stand. We have our thumb on the scales on the side of free speech; we need to be vigilant and alert to the circumstances where copyright law is not serving the cause of free expression, where it is interfering with our right to speak and communicate with one another, and we need to adjust it accordingly.

To put it bluntly: When we’re destroying books under the authority of copyright law, we not only need to be sure that they’re the right books; we need to be damned sure.

You may, or may not, agree with all that; many people don’t. But to care about intellectual property means at least to have a view on that, one way or the other — and confronting, and understanding, Jefferson’s views will help you do that.

That’s why we should care.

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