In this series, I’ve been looking at the historical record to attempt to explain why the idea that there is tension between copyright law and the First Amendment took so long to appear — it was nearly two centuries after the Copyright Act of 1790 and the Bill of Rights were passed that the first legal journal articles appeared raising the question, and it wouldn’t be until 2003, in Eldred v. Ashcroft, that the US Supreme Court confronted the issue directly. (Read Part 1, Part 2, Part 3, and Part 4).

The point of this examination is not to advance any arguments about these claims, but rather to add to the debate. As the Court noted in Eldred, “a page of history is worth a volume of logic.” It’s not as if no one was concerned with free speech before the 1960s.

Today, I want to look at copyright law’s distinction between ideas and expression. The doctrine was present in the early days of copyright, and the modern day view that it serves as a First Amendment accommodation seems consistent with historical views on the scope of the freedom of speech and the press.

The Idea Expression Distinction as a First Amendment Accommodation

The idea that copyright’s distinction between idea and expression can serve to resolve any tension with the First Amendment was first articulated by Melville Nimmer in 1970. 1Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA Law Review 1180. To Nimmer, distinguishing between idea and expression to protect free speech interests in copyright cases served as a “definitional balance” — a methodology developed largely by Nimmer. 2Norman T. Deutsch, Professor Nimmer Meets Professor Schauer (and others): An Analysis of “Definitional Balancing” as a Methodology for Determining the “Visible Boundaries of the First Amendment”, 39 Akron Law Review 483, 484 (2006).

The Supreme Court endorsed Nimmer’s view in Harper & Row Publishers v. Nation Enterprises. In the 1985 case, it said, “The Second Circuit noted, correctly, that copyright’s idea/expression dichotomy “strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.” Eldred v. Ashcroft enshrined the doctrine as US law in 2003, calling the idea/expression distinction one of copyright law’s “built-in First Amendment accommodations.”

Nimmer premised the idea of the idea/expression distinction as a First Amendment accommodation on logic, but does it have any historical support? Because there is so little in the historical record of the relationship between copyright law and freedom of speech, it shouldn’t be surprising that there is no express evidence that anyone thought in Nimmer’s terms before his article. However, I think there is implicit evidence that, had the question been put to pre-20th century legal thinkers, they would likely accept Nimmer’s definitional balance.

Freedom of Speech and Freedom of Opinion

You can write books about the development of the freedom of speech, but for this discussion, it’s helpful to describe one of the dominant progressions of the concept during the 18th century.

The right to freedom of speech owes much of its existence to the liberty of the press. The liberty of the press resulted from the expiration of England’s Licensing Act in 1694. In the following decades, it was widely understood that government had no right to license the press; but what else the liberty of the press encompassed would be the subject of debate throughout the 18th century.

William Blackstone describes the conservative view in his Commentaries on the Laws of England:

The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or enquiry: liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive of the ends of society, is the crime which society corrects.

A 2002 paper by Jeremy Ofseyer is particularly illuminating as one way to understand the backdrop of the 18th century experience that eventually led to the First Amendment. Ofseyer says:

England, like many other countries, had long enforced orthodoxy in matters of opinion. It did so in order to save the souls of heretics and out of fear that heterodoxy frays the social fabric and invites anarchy. According to this intolerant view, unorthodox opinions are not only false and offensive, but also inherently dangerous because they undermine established institutions and norms. Blackstone catalogued two main categories of opinion bans: offenses against God and religion and offenses against crown or government. 3Speech or Opinion? Two Objects of First Amendment Immunity, 2 Utah Law Review 843, 869-70.

Ofseyer notes that American liberal thinkers of the time, particularly Thomas Jefferson and James Madison, sharply disagreed with this view of the law as Blackstone described it:

Diversity of opinion is … the healthy product of freedom of thought and speech: “In every country where man is free to think and to speak, differences of opinion will arise from difference of perception, and the imperfection of reason  … .” For these reasons, Jefferson concluded that “the opinions of men are not the object of civil government, nor under its jurisdiction.”

According to Madison, there is a fundamental human property right to one’s “opinions and the free communication of them.” From this distinct, property-based premise, along with other premises akin to Jefferson’s, he reached the same conclusion: “Opinions are not the objects of legislation.”

Jefferson and Madison’s views were obviously not unanimously held at the time — before the 18th century was out, the U.S. Congress would pass the Alien and Sedition Acts, making it a crime to print or utter “any false, scandalous and malicious writing or writings against the government of the United States.” The Acts were very controversial at the time, and much of the debate was between proponents of the Blackstonian conception of the freedom of the press which permitted regulation of opinions and the liberal view that freedom of the press immunized liability for opinions. 4Compare Henry Lee, Report of the Minority on the Virginia Resolutions and James Madison, Virginia Resolutions.

The Idea-Expression Distinction in Copyright’s Early Days

One of the fundamental doctrines of copyright law, the idea-expression distinction limits copyright protection to the specific expression of a creator, leaving the ideas embodied in that expression free for all to use. The 1879 Supreme Court case Baker v. Selden is often cited as the earliest articulation of the idea expression distinction, but that is not exactly true.

The earliest discussions on the nature of copyright included a distinction between ideas — which remain free to the public — and expression — which is susceptible to protection by copyright. Discussions like these began in earnest after the passage of the Statute of Anne in England in 1710, and, though these same discussions continue to this day, toward the end of the 18th century, “all the essential elements of modern Anglo-American copyright law were in place.” 5Mark Rose, Authors and Owners: The Invention of Copyright (1993).

These essential elements include the idea-express distinction. Wrote English author and churchman William Warburton in 1762:

[H]e who obtaineth my copy may appropriate my stock of ideas, and, by opposing my sentiments, may give birth to a new doctrine or he may coincide with my notions, and, by employing different illustrations, may place my doctrine in another point of view : and either case he acquireth an exclusive title to his copy, without invading my property. 6An enquiry into the nature and origin of literary property.

Noted English jurist William Blackstone wrote of the doctrine in 1766. Blackstone used the term “sentiment” for “ideas” and “language” for “expression”.

Now the identity of a literary composition consists intirely in the sentiment and the language; the same conceptions, cloathed in the same words, must necessarily be the same composition: and whatever method be taken of conveying that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies or at any period of time, it is always the identical work of the author which is so conveyed; and no other man can have a right to convey or transfer it without his consent, either tacitly or expressly given. 7Commentaries 2:406.

English lawyer Francis Hargrave wrote in his seminal treatise An Argument in Defence of Literary Property (1774), “the use of ideas and knowledge is as common as it would be, if the right of printing was not appropriated.”

In Germany, philosopher Johann Gottlieb Fichte published Proof of the Illegality of Reprinting in 1793, which made a distinction between the material aspect of a book and the ideational aspect:

This ideational aspect is in turn divisible into a material aspect, the content of the book, the ideas it presents; and the form of these ideas, the way in which, the combination in which, the phrasing and wording in which they are presented.

…[T]he content of the book … can be the common property of many, and in such a manner that each can possess it entirely, clearly ceases upon the publication of a book to be the exclusive property of its first proprietor (if indeed it was so prior to publication, which is not always the case with some books nowadays), but does continue to be his property in common with many others. What, on the other hand, can absolutely never be appropriated by anyone else, because this is physically impossible, is the form of the ideas, the combination in which, and the signs through which they are presented.

It is clear that by the time the United States became independent of England and formed its own government, a distinction between ideas and expression was established in copyright law.

Freedom of Ideas, Protection of Expression

The distinction between ideas and expression in copyright law was recognized early on. At the same time, freedom of speech and the press was seen as vital to the protection of opinion and the dissemination of ideas and facts. The notion that the idea/expression distinction ensures copyright law’s compatibility with the First Amendment’s prohibition on laws infringing free speech would thus appear wholly consistent with historical conceptions of these freedoms and the law. Copyright does not bar the “free communication of” ideas, nor does it punish anyone for disseminating “bad sentiments.”

We can turn to James Madison for indirect evidence of this consistency. Madison, after all, proposed that the federal Congress should have the power to secure copyrights during the Constitutional Convention. Years before that, he sat on the Continental Congress committee that encouraged the States to pass their own copyright legislation and penned Virginia’s subsequently passed copyright act. Few of the Founding Fathers could claim more responsibility for Congress’s authority to make copyright law.

James Madison also was the first to introduce a Bill of Rights to amend the Constitution, although he had originally opposed the idea. What’s interesting is the language he chose regarding the freedom of speech. Madison’s amendment that would eventually become part of the First Amendment said, “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments” (emphasis added).

Note that this is the same language used by William Blackstone when he described copyright, saying the “identity of a literary composition consists intirely in the sentiment and the language.”

William Blackstone was one of the most influential legal scholars to the Founding Fathers, Madison included. 8Mary Sarah Bilder, James Madison, Law Student and Demi-Lawyer, 28 Law and History Review 389, 399 (2010). And its possible the same language was a conscious choice. Bilder notes that Madison’s life showed a devotion to “the problem of language.” “He copied cases in which the presence of one word mattered.” His legal notes reveal questions that fascinated Madison, like “What did particular words mean?”

Madison cared about perspicuity. In one sense, he was not unusual in this regard, for perspicuity occupied the minds of late eighteenth-century rhetoricians. The word reappears in letters written during the Philadelphia Convention and his later correspondence. In Federalist 37, Madison famously wrote, “Perspicuity therefore requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriated to them.”

This isn’t definitive evidence, of course. But it does support the idea that, had Madison and other Founding Fathers been confronted with the question of whether copyright law conflicts with the First Amendment, they would have accepted the Supreme Court’s holding that the First Amendment is accomodated by copyright law’s idea/expression distinction.

References   [ + ]

1. Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA Law Review 1180.
2. Norman T. Deutsch, Professor Nimmer Meets Professor Schauer (and others): An Analysis of “Definitional Balancing” as a Methodology for Determining the “Visible Boundaries of the First Amendment”, 39 Akron Law Review 483, 484 (2006).
3. Speech or Opinion? Two Objects of First Amendment Immunity, 2 Utah Law Review 843, 869-70.
4. Compare Henry Lee, Report of the Minority on the Virginia Resolutions and James Madison, Virginia Resolutions.
5. Mark Rose, Authors and Owners: The Invention of Copyright (1993).
6. An enquiry into the nature and origin of literary property.
7. Commentaries 2:406.
8. Mary Sarah Bilder, James Madison, Law Student and Demi-Lawyer, 28 Law and History Review 389, 399 (2010).