The Public Domain Part 3

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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 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 possess the less, because every other possess 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.

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all s.p.a.ce, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.10 13

Those who quote the pa.s.sage sometimes stop here, which is a shame, because it leaves the impression that Jefferson was unequivocally against intellectual property rights. But that would be a considerable overstatement. When he says that inventions can never be the subject of property, he means a permanent and exclusive property right which, as a matter of natural right, no just government could abridge. However, inventions could be covered by temporary state-created monopolies inst.i.tuted for the common good. In the lines immediately following the popularly quoted excerpt, Jefferson goes on: 14

Society may give an exclusive right to the profits arising from [inventions], as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarra.s.sment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.11 15

Jefferson's message was a skeptical recognition that intellectual property rights might be necessary, a careful explanation that they should not be treated as natural rights, and a warning of the monopolistic dangers that they pose. He immediately goes on to say something else, something that is, if anything, more true in the world of patents on Internet business methods and gene sequences than it was in the world of "conveyers and Hopper-boys."

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Considering the exclusive right to invention as given not of natural right, but for the benefit of society, I know well the difficulty of drawing a line between the things which are worth to the public the embarra.s.sment of an exclusive patent, and those which are not.12

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So Jefferson gives us a cla.s.sic set of cautions, cautions that we should be required to repeat, as police officers repeat the Miranda Warning to a suspect. In this case, they should be repeated before we rush off into the world of intellectual property policy rather than before we talk to the police without our lawyers present.

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THE JEFFERSON WARNING 19

Like the Miranda Warning, the Jefferson Warning has a number of important parts.

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* First, the stuff we cover with intellectual property rights has certain vital differences from the stuff we cover with tangible property rights. Partly because of those differences, Jefferson, like most of his successors in the United States, does not see intellectual property as a claim of natural right based on expended labor. Instead it is a temporary state-created monopoly given to encourage further innovation.

* Second, there is no "ent.i.tlement" to have an intellectual property right. Such rights may or may not be given as a matter of social "will and convenience" without "claim or complaint from any body."

* Third, intellectual property rights are not and should not be permanent; in fact they should be tightly limited in time and should not last a day longer than necessary to encourage the innovation in the first place.

* Fourth, a linked point, they have considerable monopolistic dangers--they may well produce more "embarra.s.sment than advantage." In fact, since intellectual property rights potentially restrain the benevolent tendency of "ideas . . .

[to] freely spread from one to another over the globe, for the moral and mutual instruction of man," they may in some cases actually hinder rather than encourage innovation.

* Fifth, deciding whether to have an intellectual property system is only the first choice in a long series.13 Even if one believes that intellectual property is a good idea, which I firmly do, one will still have the hard job of saying which types of innovation or information are "worth to the public the embarra.s.sment" of an exclusive right, and of drawing the limits of that right. This line-drawing task turns out to be very difficult. Without the cautions that Jefferson gave us it is impossible to do it well.

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Jefferson's message was famously echoed and amplified thirty years later in Britain by Thomas Babington Macaulay.14 Macaulay's speeches to the House of Commons in 1841 on the subject of copyright term extension still express better than anything else the position that intellectual property rights are necessary evils which must be carefully circ.u.mscribed by law. In order for the supply of valuable books to be maintained, authors "must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright." Patronage is rejected out of hand. "I can conceive no system more fatal to the integrity and independence of literary men than one under which they should be taught to look for their daily bread to the favour of ministers and n.o.bles."15 22

We have, then, only one resource left. We must betake ourselves to copyright, be the inconveniences of copyright what they may. Those inconveniences, in truth, are neither few nor small. Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. . . . I believe, Sir, that I may safely take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honorable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Company's monopoly of tea, or by Lord Ess.e.x's monopoly of sweet wines. Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.16 23

Notice that it is the monopolistic quality of intellectual property that really disturbs Macaulay. His was a generation of thinkers for whom the negative effect of monopolies of any kind (and state-granted monopolies in particular) was axiomatic. He becomes almost contemptuous when one of the supporters of copyright extension declared that it was merely "a theory" that monopoly makes things expensive. Macaulay agrees, tongue in cheek. "It is a theory in the same sense in which it is a theory, that day and night follow each other, that lead is heavier than water, that bread nourishes, that a.r.s.enic poisons, that alcohol intoxicates."17 24

These words from Jefferson and Macaulay encapsulate an eighteenth- and nineteenth-century free-trade skepticism about intellectual property, a skepticism that is widely, but not universally, believed to have played an important role in shaping the history of intellectual property in both the United States and the United Kingdom. Certainly the U.S. Supreme Court has offered support for that position,18 and, with one significant recent exception,19 historians of intellectual property have agreed.20 Jefferson himself had believed that the Const.i.tution should have definite limits on both the term and the scope of intellectual property rights.21 James Madison stressed the costs of any intellectual property right and the need to limit its term and to allow the government to end the monopoly by compulsory purchase if necessary.22 Adam Smith expressed similar views. Monopolies that carry on long after they were needed to encourage some socially beneficial activity, he said, tax every other citizen "very absurdly in two different ways: first, by the high price of goods, which, in the case of a free trade, they could buy much cheaper; and, secondly, by their total exclusion from a branch of business which it might be both convenient and profitable for many of them to carry on."23 25

It is important to note, though, that the eighteenth- and nineteenth-century writers I have quoted were not against intellectual property. All of them--Jefferson, Madison, Smith, and Macaulay--could see good reason why intellectual property rights should be granted. They simply insisted on weighing the costs and benefits of a new right, each expansion of scope, each lengthening of the copyright term. Here is Macaulay again, waxing eloquently sarcastic about the costs and benefits of extending the copyright term so that it would last many years after the author's death: 26

I will take an example. Dr. Johnson died fifty-six years ago. If the law were what my honourable and learned friend wishes to make it, somebody would now have the monopoly of Dr.

Johnson's works. Who that somebody would be it is impossible to say; but we may venture to guess. I guess, then, that it would have been some bookseller, who was the a.s.sign of another bookseller, who was the grandson of a third bookseller, who had bought the copyright from Black Frank, the Doctor's servant and residuary legatee, in 1785 or 1786. Now, would the knowledge that this copyright would exist in 1841 have been a source of gratification to Johnson? Would it have stimulated his exertions? Would it have once drawn him out of his bed before noon? Would it have once cheered him under a fit of the spleen?

Would it have induced him to give us one more allegory, one more life of a poet, one more imitation of Juvenal? I firmly believe not. I firmly believe that a hundred years ago, when he was writing our debates for the Gentleman's Magazine, he would very much rather have had twopence to buy a plate of s.h.i.+n of beef at a cook's shop underground.24 27

Again, I am struck by how seamlessly Macaulay coupled beautiful, evocative writing and careful, a.n.a.lytic argument. Admittedly, he was remarkable even in his own time, but it is hard to imagine a contemporary speechwriter, let alone a politician, coming up with Dr. Johnson "cheered . . . under a fit of the spleen" or buying a "plate of s.h.i.+n of beef at a cook's shop underground."

Almost as hard as it is to imagine any of them engaging in Jefferson's correspondence about mammoth bones, orthography, and the practicalities of the nautical torpedo. But I digress.

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Macaulay is not against using a lengthened copyright term to give an extra reward to writers, even if this would dramatically raise the price of books. What he objects to is dramatically raising the price of books written by long-dead authors in a way that benefits the authors hardly at all.

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Considered as a reward to him, the difference between a twenty years' and a sixty years' term of posthumous copyright would have been nothing or next to nothing. But is the difference nothing to us? I can buy Ra.s.selas for sixpence; I might have had to give five s.h.i.+llings for it. I can buy the Dictionary, the entire genuine Dictionary, for two guineas, perhaps for less; I might have had to give five or six guineas for it. Do I grudge this to a man like Dr. Johnson? Not at all.

Show me that the prospect of this boon roused him to any vigorous effort, or sustained his spirits under depressing circ.u.mstances, and I am quite willing to pay the price of such an object, heavy as that price is. But what I do complain of is that my circ.u.mstances are to be worse, and Johnson's none the better; that I am to give five pounds for what to him was not worth a farthing.25 30

Though Macaulay won the debate over copyright term extension, it is worth noting here that his opponents triumphed in the end. As I pointed out in the last chapter, the copyright term in most of Europe and in the United States now lasts for the life of the author and an additional seventy years afterward, ten years more than the proposal which made Macaulay so indignant. In the United States, corporate owners of "works-for-hire" get ninety- five years.26 The Supreme Court recently heard a const.i.tutional challenge to the law which expanded the term of copyrights by twenty years to reach this remarkable length.27 (Full disclosure: I helped prepare an amicus brief in that case.)28 This law, the Sonny Bono Copyright Term Extension Act, also extended existing copyrights over works which had already been created.29 As I observed earlier, this is particularly remarkable if the idea is to give an incentive to create.

Obviously the authors of existing works were given sufficient incentive to create; we know that because they did. Why do we need to give the people who now hold their copyrights another twenty years of monopoly? This is all cost and no benefit.

Macaulay would have been furious.

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When the Supreme Court heard the case, it was presented with a remarkable friend-of-the-court brief from seventeen economists, several of them n.o.bel laureates.30 The economists made exactly Macaulay's argument, though in less graceful language. They pointed out that copyright extension imposed enormous costs on the public and yet conveyed tiny advantages, if any, to the creator. Such an extension, particularly over works that had already been written, hardly fit the limits of Congress's power under the Const.i.tution "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."31 Macaulay doubted that these enormously long terms would encourage the living. Surely they would do little to encourage the dead, while imposing considerable costs of access on the living? Thus they could hardly be said to "promote the progress" of knowledge as the Const.i.tution requires. The Court was unmoved by this and other arguments. It upheld the law. I will return to its decision at the end of the book.

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The intellectual property skeptics had other concerns. Macaulay was particularly worried about the power that went with a transferable and inheritable monopoly. It is not only that the effect of monopoly is "to make articles scarce, to make them dear, and to make them bad." Macaulay also pointed out that those who controlled the monopoly, particularly after the death of the original author, might be given too great a control over our collective culture. Censorious heirs or purchasers of the copyright might prevent the reprinting of a great work because they disagreed with its morals.32 We might lose the works of Fielding or Gibbon, because a legatee found them distasteful and used the power of the copyright to suppress them. This is no mere fantasy, Macaulay tells us. After praising the novels of Samuel Richardson in terms that, to modern eyes, seem a little fervid ("No writings, those of Shakespeare excepted, show more profound knowledge of the human heart"), Macaulay recounts the story of Richardson's grandson, "a clergyman in the city of London." Though a "most upright and excellent man," the grandson "had conceived a strong prejudice against works of fiction,"

"thought all novel-reading not only frivolous but sinful," and "had never thought it right to read one of his grandfather's books."33 Extended copyright terms might hand over the copyright to such a man. The public would lose, not because they had to pay exorbitant prices that denied some access to the work, but because the work would be altogether suppressed. Richardson's novels--Pamela, Clarissa Harlowe, and so on--are now the preserve of the cla.s.sroom rather than the drawing room, so this might not seem like much of a loss. But Macaulay's next example is not so easy to dismiss.

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One of the most instructive, interesting, and delightful books in our language is Boswell's Life of Johnson. Now it is well known that Boswell's eldest son considered this book, considered the whole relation of Boswell to Johnson, as a blot in the escutcheon of the family. He thought, not perhaps altogether without reason, that his father had exhibited himself in a ludicrous and degrading light. And thus he became so sore and irritable that at last he could not bear to hear the Life of Johnson mentioned. Suppose that the law had been what my honourable and learned friend wishes to make it. Suppose that the copyright of Boswell's Life of Johnson had belonged, as it well might, during sixty years, to Boswell's eldest son. What would have been the consequence? An unadulterated copy of the finest biographical work in the world would have been as scarce as the first edition of Camden's Britannia.34 34

From more recent examples we can see that outright suppression is not the only thing to fear. The authors' heirs, or the corporations which have purchased their rights, may keep policing the boundaries of the work long after the original author is dead. In 2001, Alice Randall published The Wind Done Gone. As its t.i.tle might indicate, The Wind Done Gone was a 220- page "critique of and reaction to" the world of Gone With the Wind by Margaret Mitch.e.l.l.35 Most crucially, perhaps, it was a version of Gone With the Wind told from the slaves' point of view. Suddenly the actions of Rhett ("R"), Scarlett ("Other"), and an obviously gay Ashley ("Dreamy Gentleman") come into new perspective through the eyes of Scarlett's "mulatto" half- sister. Mitch.e.l.l's estate wanted to prevent publication of the book. At first they were successful.36 As Yochai Benkler puts it, 35

Alice Randall, an African American woman, was ordered by a government official not to publish her criticism of the romanticization of the Old South, at least not in the words she wanted to use. The official was not one of the many in Congress and the Administration who share the romantic view of the Confederacy. It was a federal judge in Atlanta who told Randall that she could not write her critique in the words she wanted to use--a judge enforcing copyright law.37 36

"They killed Miss Scarlett!" the astonished trial judge said after reading Randall's book. My colleague Jennifer Jenkins, one of the lawyers in the case, recounts that the judge saw the case in relentlessly physical terms, seeing the parody as a "bulldozer" and Gone With the Wind as a walled country estate into which the bulldozer had violently trespa.s.sed. He was consequently unimpressed with the claim that this "bulldozer"

was protected by the First Amendment. Eventually, the court of appeals overturned the district court's judgment.38 Fifty-two years after Margaret Mitch.e.l.l's death, it was a hotly debated point how much leeway copyright gave to others to comment upon, critique, embellish upon, and parody the cultural icon she had conjured up.

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A NATURAL RIGHT?

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To some people, my argument so far--and Jefferson's and Macaulay's--will seem to miss the point. They see intellectual property rights not as an incentive, a method of encouraging the production and distribution of innovation, but as a natural or moral right. My book is mine because I wrote it, not because society or the law gives me some period of exclusivity over allowing the copying of its contents. My invention is mine because it came from my brain, not because the law declares a twenty-year monopoly over its production or distribution. My logo is mine because I worked hard on it, not because the state grants me a trademark in order to lower search costs and prevent consumer confusion. One answer is simply to say "In the United States, the framers of the Const.i.tution, the legislature, and the courts have chosen to arrange things otherwise. In copyright, patent, and trademark law--despite occasional deviations--they have embraced the utilitarian view instead."

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Broadly speaking, that answer is correct.39 It also holds, to a lesser extent, in Britain. Even in the droits d'auteur countries, which have a markedly different copyright law regime, it largely holds for their patent and trademark law systems, and utilitarian strands suffuse even "the sacred rights of authors."

So, on a national level, we have rejected or dramatically limited the natural rights view, and on an international level, we have rejected it in "industrial property"--patent and trademark--and modified it in copyright.

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I think this answer is correct and important, but we have an obligation to go further. Partly that is because intuitions about owners.h.i.+p coming naturally with labor or discovery continue to influence the law. Partly it is because those moral intuitions are important and appealing. Partly it is because we might wish to modify or criticize our current system. Using the views of the framers, or current law, to preempt discussion is unsatisfactory--even though those views are of particular importance for the legal policy decisions we face in the short run, the issues on which much of my argument is concentrated.

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There are varying stated grounds for natural or moral rights in intellectual creations. Some people may think the book is mine because I worked on it--a Lockean conception where I mix my sweat with these words and receive a property right in the process.

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For all its attractions, there are considerable difficulties with such a view. Even within the world of tangible property, Locke's theory is more complicated than a simple equation of labor with property right. Jefferson's account of property is actually closer to Locke's than many would realize. When Jefferson points out the difficulty in justifying a natural right even in an acre of land, let alone a book, his premises are not radically different from Locke's. The same is true when Jefferson says that "[s]table owners.h.i.+p is the gift of social law, and is given late in the progress of society." Even if natural right does create the ground for the property claim, it is "social law" that shapes its contours and guarantees its stability. Jefferson, of course, thought that was particularly true for intellectual property rights. In that context, he felt the natural rights argument was much weaker and the need for socially defined purposive contours and limitations stronger.

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Locke's own views on what we would think of as copyright are hard to determine. We do know that he had a strong antipathy to monopolies--particularly those affecting expression. He believed, for example, that giving publishers monopolies over great public domain books caused a disastrous fall in quality. Instead, he argued, such books should be open for all to compete to produce the best edition. Of course, he was writing in the context of monopolistic printing privileges--to which he was strongly opposed--rather than of individual authorial rights. Yet he went further and suggested that even for contemporary works, after a particular time in print--say fifty years--books could be printed by anyone.

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