A letter written by Thomas Jefferson to Isaac McPherson in 1813 has become canonized into the copyright skepticism movement. You’re probably familiar with the letter, which reads in part:

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.

This letter has become, in the words of James Boyle, “very famous in the world of the digerati.” 1Boyle, The Public Domain: Enclosing the Commons of the Mind, pg 18 (2008). Just this past week, law professor David Post referred to this letter in a talk on Jefferson, copyright, and the net, calling it “one of the foundational documents for intellectual property law in the US.”

It’s easy to see why this particular letter is valued so much by copyright’s critics — it expresses sentiments they agree with and it is written by a Founding Father, giving it the weight of authority. One gets the sense from reading those that quote this letter that it presents a sort of idealized version of copyright, one that current copyright law has long since forgotten. 2One egregiously revisionist version of this sentiment can be seen at TechDirt: On the Constitutional Reasons Behind Copyright and Patents.

Despite the sacrosanct nature that this letter has been given, there are some serious problems with it being considered a foundational document in copyright law.

He was talking about something else

For starters, Jefferson was expressly talking about patents, not copyright. It’s odd that the letter is used at all when discussing copyright because of this fact, but it is. 3Along with the examples above, see John Perry Barlow, The Economy of Ideas, Wired (March 1994); Russell McOrmond, Jefferson Debate: A Godwin’s law for copyright discussions? Digital Copyright Canada (Dec. 17, 2005); Nadine Farid, Not in my Library: Eldred v. Ashcroft and the Demise of the Public Domain, 5 Tulane Journal of Technology and Intellectual Property 1, 4-5 (2003); Parker Higgins, A Response to the Harvard Crimson’s “A Sensible Compromise”, freeculture.org (Dec. 23, 2010); Stealing Ideas, Structural Knowledge (July 19, 2011). Though the two share similarities — for example, Congress’s power to make laws concerning both stems from the same Constitutional clause, and Congressional practice concerning one can inform the other 4Eldred v. Ashcroft, 537 US 186, 201 (2003). — the differences between them are more relevant here.

On the one hand, it can be said that a patent protects ideas embodied in a new invention or process. Though a patent can’t protect an abstract idea by itself, nor take a known idea out of the public domain, 5Aronson v. Quick Point Pencil, 440 US 257, 263 (1979). it does foreclose the use of the ideas described in the invention’s claims. 6Diamond v. Diehr, 450 US 175, 187 (1981). This tension between patent protection and the free flow of ideas is inherent in patent law. Jefferson’s description of the nature of ideas in the letter reflects his concerns over this tension, especially in light of the argument that inventors have a natural right to their inventions that Jefferson refers to at the beginning of the letter.

Copyright, on the other hand, protects expression, not the underlying facts or ideas embodied in that expression. 7Harper & Row v. Nation Enterprises, 471 US 539, 544 (1985). Copyright protection and the free flow of ideas are fully congruent — and, in fact, by providing an incentive to disseminate expression of ideas, copyright protection encourages the contribution of new ideas into the public domain.

So even if we ignore that Jefferson was specifically talking about patents in this letter, his points have little relevance to copyright.

Jefferson and patent law

Returning back to the subject of patents, it is undeniable that Jefferson in general and this letter in particular has influenced the development of the law. Thomas Jefferson was not only an inventor, but an administrator of patent law under the 1790 Patent Act and author of the 1793 Patent Act. The Supreme Court has relied on his views, including those he expressed to McPherson, as an aid to interpreting patent law on several occassions. 8See, for example, Graham v. John Deere, 383 US 1, 8-9 (1966).

The use of Jefferson’s views on patent law, however, has been criticized.

On a number of occasions, Justices of the Supreme Court have relied on the views of Thomas Jefferson as a means of explicating their interpretations of both the patent clause of the Constitution and various patent statutes. In so doing, these Justices have created a Jeffersonian mythology that, in a number of respects, is significantly at odds with the historical record. The Court has, in particular, overrated and over stressed Jefferson’s ostensible influence on the early development and interpretation of the patent law through a selective use of the historical record. 9Edward C. Walterscheid, The Use and Abuse of History: The Supreme Court’s Interpretation of Thomas Jefferson’s Influence on the Patent Law, 39 Journal of Law and Technology 195 (1999).

In Who Cares What Thomas Jefferson Thought About Patents? Adam Mossoff also questions the influence of Jefferson on patent law:

In 1966, the Supreme Court discovered that Thomas Jefferson was the founder of American patent law. In Graham v. John Deere Co., the Court first invoked Jefferson’s words that the “embarrassment of an exclusive patent” was a special legal privilege justified only because these “monopolies of invention” served the “benefit of society.” Jefferson the next two decades, leading patent law scholars to remark recently that Jefferson’s “views . . . have proven influential, especially in the Supreme Court.” Following the Court’s practice, intellectual property scholars, especially those engaged in the increasingly rancorous debate over rights in digital content on the Internet, invoke Jefferson’s words as an unassailable historical axiom.

In short, says Mossoff, “Jefferson’s hegemony over the history of American patent law is as indisputable as it is wrong.”

Jefferson and copyright law

While the case for Jefferson’s influence on patent law is subject to debate, the case for his authority on informing copyright law is decidely weak.

Unlike patent law, Jefferson had little to do with copyright law during his lifetime. Copyright protection in the United States was first championed by a group of authors, including Noah Webster and Joel Barlow. 10Thomas Nachbar, Constructing Copyright’s Mythology, 6 Green Bag 2D 37, 37-38 (2002). In response, a committee in the Continental Congress — consisting of James Madison, Hugh Williamson, and Ralph Izard — drafted a resolution that recommended the states pass their own copyright laws. 1124 Journals of the Continental Congress 326-27 (May 2, 1783). Twelve of the thirteen states had passed such legislation by 1786. When the Constitution was drafted, it was proposals by Madison and Charles Pinckney that eventually became the Copyright Clause. 12Dotan Oliar, The (Constitutional) Convention on IP: A New Reading, 57 UCLA Law Review 421 (2009). The Copyright Act of 1790, the first law made pursuant to Congress’s copyright authority, reflected little independent thought on intellectual property — rather, it was England’s 1710 Statute of Anne “phrased in somewhat more modern language and featuring a few omissions, additions, and modifications.” 13Oren Bracha, The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant, 25 Berkeley Technology Law Journal 1427, 1453 (2010).

Notably absent from this discussion of the early days of US copyright law is any mention of Thomas Jefferson. Jefferson was a minister to France when the first state copyright acts were passed and was not even in the US when the Constitution was drafted. As law professor Justin Hughes points out, “this, by itself, should largely curtail the use of Jefferson as ‘a reliable source of the meaning of Article I of the Constitution.'” 14Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 Southern California Law Review 993, 1026 (2006).

While Jefferson wrote about copyright on occassion — he wrote about many subjects — his views on copyright have not been as influential in courts as his views on patent. Justice Breyer makes brief mention to several letters written by Jefferson in his dissent in Eldred v. Ashcroft (though not the McPherson letter); other than that, US courts have not inquired about Jefferson’s views on copyright.

So should we care what Thomas Jefferson thought about copyright law?

Sure, as long as his views are accorded the proper weight. History is important in copyright law — the Supreme Court’s recent oral arguments in Golan v. Holder dealt in part with the effect of the Copyright Act of 1790. But using history appropriately is about more than finding nice sounding quotes from important people. 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.

References   [ + ]

1. Boyle, The Public Domain: Enclosing the Commons of the Mind, pg 18 (2008).
2. One egregiously revisionist version of this sentiment can be seen at TechDirt: On the Constitutional Reasons Behind Copyright and Patents.
3. Along with the examples above, see John Perry Barlow, The Economy of Ideas, Wired (March 1994); Russell McOrmond, Jefferson Debate: A Godwin’s law for copyright discussions? Digital Copyright Canada (Dec. 17, 2005); Nadine Farid, Not in my Library: Eldred v. Ashcroft and the Demise of the Public Domain, 5 Tulane Journal of Technology and Intellectual Property 1, 4-5 (2003); Parker Higgins, A Response to the Harvard Crimson’s “A Sensible Compromise”, freeculture.org (Dec. 23, 2010); Stealing Ideas, Structural Knowledge (July 19, 2011).
4. Eldred v. Ashcroft, 537 US 186, 201 (2003).
5. Aronson v. Quick Point Pencil, 440 US 257, 263 (1979).
6. Diamond v. Diehr, 450 US 175, 187 (1981).
7. Harper & Row v. Nation Enterprises, 471 US 539, 544 (1985).
8. See, for example, Graham v. John Deere, 383 US 1, 8-9 (1966).
9. Edward C. Walterscheid, The Use and Abuse of History: The Supreme Court’s Interpretation of Thomas Jefferson’s Influence on the Patent Law, 39 Journal of Law and Technology 195 (1999).
10. Thomas Nachbar, Constructing Copyright’s Mythology, 6 Green Bag 2D 37, 37-38 (2002).
11. 24 Journals of the Continental Congress 326-27 (May 2, 1783).
12. Dotan Oliar, The (Constitutional) Convention on IP: A New Reading, 57 UCLA Law Review 421 (2009).
13. Oren Bracha, The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant, 25 Berkeley Technology Law Journal 1427, 1453 (2010).
14. Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 Southern California Law Review 993, 1026 (2006).

11 Comments

  1. Also worth pointing out that Jefferson wasn’t exactly a working creator. If I had a plantation, I might be willing to give my work away. Since I don’t, I wonder what James Boyle would have me do? Oh, right – he doesn’t care, since he has tenure.

  2. Thomas Jefferson was not only an inventor, but an administrator of patent law under the 1790 Patent Act and author of the 1793 Patent Act.

    Interesting tidbit I picked up in my patent law class: The original “patent board” was Secretary of State Thomas Jefferson, Secretary of War Henry Knox, and Attorney General Edmund Randolph. They called themselves “Commissioners for the Promotion of Useful Arts.” An inventor needed the vote of all three, “or any two of them, if they shall deem the invention or discovery sufficiently useful and important,” to get a patent. http://ipmall.info/hosted_resources/lipa/patents/Patent_Act_of_1790.pdf

    Here’s a depiction of the three: http://www.myoutbox.net/p024.htm

    It’s kind of quaint to think that they could hold such high office and have time to analyze patent applications.

  3. For those so inclined to read further, the entirety of Mr. Jefferson’s letter to Issac McPherson can be found at:

    http://www.red-bean.com/kfogel/jefferson-macpherson-letter.html

    Not only does the letter have absolutely nothing to do with copyright, one might even forcefully and persuasively argue that the selection from it used by those arguing against copyright actually harms their cause. For them to realize this, however, it is necessary that they read it in its entirety.

    • Professor Post wrote:

      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.

      It seems to me that you are mixing up expression and idea to arrive at your conclusion that copyright isn’t natural. Since copyright does not protect ideas, it makes little sense to argue that copyright can’t be natural since it attempts to protect ideas. That’s a non sequitur. How does the non-containability of ideas prove that copyright isn’t natural? This ties into Terry’s point that Jefferson was writing about patents, and not copyrights, in that letter (a point you didn’t address in your response).

      Your answer about why we should care about what Jefferson had to say about copyright is similarly perplexing. “Because he’s Jefferson . . . QED” is not a helpful answer. And given your concession that Jefferson perhaps had “more nutty and bizarre thoughts about a more diverse range of subjects than any person in history,” you haven’t really explained why we should give his views on copyright much weight. If anything, you’ve given us reason to be doubtful of whatever he might have said. And, by the way, what did he actually say about copyright? You didn’t tell us.

      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.

      I’m curious. Are you anti-copyright? (I’ve yet to see someone who wasn’t anti-copyright harp on the notion that copyright isn’t natural, and I’ve never seen you say anything positive about copyright.) Can you give me an example of where copyright doesn’t “come into conflict” with free expression? Is “adjust it accordingly” simply a euphemism for getting rid of copyright altogether?

      • Since copyright does not protect ideas, it makes little sense to argue that copyright can’t be natural since it attempts to protect ideas.

        Copyright DOES protect ideas – despite the contrary talking point put out by the legal community. The fact that copyright protects all ‘derivative’ works stemming from an underlying work is de facto proof that ideas are protected.

        If I decide to create a James Bond film on my own without any authorization, yet I do not utilize any actual footage from previous works, I will still be liable for copyright infringement since it protects the character of James Bond. In other words, it protects the IDEA of James Bond. Hence the reason why the unauthorized sequel to ‘Catcher in the Rye’ remains banned in the U.S. despite the fact that no actual passages of words from ‘Catcher in the Rye’ were used in it.

        Professor Post was no doubt commenting on how current copyright law is actually practiced, and not content to merely acquiesce to a legal talking point which has proven less and less relevant to reality in today’s digital world.

        • i think you’re confused…
          You could indeed make a movie about a secret agent, who uses gadgets and gets the girls… that you couldn’t call him ‘Bond… James Bond’ isn’t protecting an idea.. its the SPECIFIC EXPRESSION of that idea…

          Reach a lil further…you’ll find bells…

        • If I decide to create a James Bond film on my own without any authorization, yet I do not utilize any actual footage from previous works, I will still be liable for copyright infringement since it protects the character of James Bond. In other words, it protects the IDEA of James Bond. Hence the reason why the unauthorized sequel to ‘Catcher in the Rye’ remains banned in the U.S. despite the fact that no actual passages of words from ‘Catcher in the Rye’ were used in it.

          The issue you’re bringing up is the copyrightability of characters. The character of James Bond is protected expression, but the general idea of a James Bond-type character is not. In the Catcher in the Rye case, Colting’s “Mr. C” character was substantially similar (and therefore infringing) to Salinger’s “Holden Caulfield.” You’re confusing the idea for the expression, but this is understandable since the line between idea and expression is not always clear, especially when it comes to characters.

          Judge Learned Hand explains this issue eloquently:

          It is of course essential to any protection of literary property, whether at common-law or under the statute, that the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations. That has never been the law, but, as soon as literal appropriation ceases to be the test, the whole matter is necessarily at large, so that, as was recently well said by a distinguished judge, the decisions cannot help much in a new case. When plays are concerned, the plagiarist may excise a separate scene or he may appropriate part of the dialogue. Then the question is whether the part so taken is “substantial,” and therefore not a “fair use” of the copyrighted work; it is the same question as arises in the case of any other copyrighted work. But when the plagiarist does not take out a block in situ, but an abstract of the whole, decision is more troublesome. Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his “ideas,” to which, apart from their expression, his property is never extended. Nobody has ever been able to fix that boundary, and nobody ever can. In some cases the question has been treated as though it were analogous to lifting a portion out of the copyrighted work; but the analogy is not a good one, because, though the skeleton is a part of the body, it pervades and supports the whole. In such cases we are rather concerned with the line between expression and what is expressed. As respects plays, the controversy chiefly centers upon the characters and sequence of incident, these being the substance.

          We did not in Dymow v. Bolton hold that a plagiarist was never liable for stealing a plot; that would have been flatly against our rulings in Dam v. Kirk La Shelle Co. and Stodart v. Mutual Film Co.; neither of which we meant to overrule. We found the plot of the second play was too different to infringe, because the most detailed pattern, common to both, eliminated so much from each that its content went into the public domain; and for this reason we said, “this mere subsection of a plot was not susceptible of copyright.” But we do not doubt that two plays may correspond in plot closely enough for infringement. How far that correspondence must go is another matter. Nor need we hold that the same may not be true as to the characters, quite independently of the “plot” proper, though, as far as we know, such a case has never arisen. If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress. These would be no more than Shakespeare’s “ideas” in the play, as little capable of monopoly as Einstein’s Doctrine of Relativity, or Darwin’s theory of the Origin of Species. It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.

          Nichols v. Universal Pictures, 45 F.2d 119, 121 (2d Cir. 1930) (internal citations omitted).

          Just because it’s hard to draw the line between idea and expression of a character doesn’t mean that there is no line between the two. Nor does that show that there is no idea/expression dichotomy in general. And it certainly doesn’t mean that one can rightfully read a passage from Jefferson talking about patents and apply that reasoning to copyrights.

  4. Pingback: Why Should We Care What Jefferson Thought About Copyright? | theConstitutional.org

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  6. Be sure to catch Robert Levine’s two-cents on this: http://freeridethebook.wordpress.com/2011/10/20/jefferson-i-think-were-lost/

    This line (with a link to techdirt.com) cracks me up: “Thingz shud be free on teh Interwebz.” Well done!

    Levine asks: “They seem too smart to make these kinds of mistakes. So I wonder why they keep saying things that aren’t true.”

    Good question. I’m guessing we won’t get any sort of an explanation from Prof. Post anytime soon.

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  11. Leaving aside the distinction between patents and copyright, the usual quotation from Jefferson is open to the objection that its last two sentences are simply false. Those two sentences appear to claim, using the metaphor of a lighted taper, that the communication of ideas does not harm the person who communicates them. In many circumstances this simply isn’t true. Notably, if you have an idea for a valuable industrial process, or a powerful new theory of stock market prices, their value to you is greatly diminished if they become generally known. It is precisely their exclusivity that gives them much of their commercial value. If Jefferson’s claims were true, there would be no such thing as commercial secrecy or industrial espionage. Coca Cola would publish their secret recipe, and Microsoft would publish the source code for Windows. What would they have to lose? (sarcasm intended).

    Of course, Jefferson’s literal meaning could be defended by saying that someone who communicates an idea still has the idea for their own use. If Coca Cola published their recipe, they could still use it themselves. But if this was Jefferson’s intention, he was guilty of using misleading rhetoric. The natural impression left by his ‘lighted taper’ metaphor is that no detriment is incurred by someone who passes on an idea. In a wide range of cases this is obviously nonsense. But then I am not an American, so I am not obliged to think that the sun shines out of Jefferson’s ffundament.

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