One of the common historical claims of copyright skeptics is that the Founding Fathers in the US were “suspicious” of copyright and only implemented it with reluctance. The idea could be to argue for sharp reductions in copyright law by appealing to history — as professor Tom Bell said recently in favor of decreasing copyright protections, “If it was good enough for old Ben, Tom, George, etc., it’s good enough for me.” This despite the minimal debate over the Copyright Clause in the Constitution and the subsequent Copyright Act of 1790. The “suspicions” that are often cited do not appear in these debates, nor do they manifest themselves in either of these texts. Instead, the historical record shows a fairly consistent view; when the Founders did discuss copyright, it was seen as both a natural property right of authors that deserved protecting in any enlightened nation.
The heavy lifting for the “suspicious Founding Fathers” argument comes primarily by an exchange of letters between Thomas Jefferson and James Madison discussing the recently drafted Constitution. Jefferson, expressing his thoughts on the document, mentioned briefly its lack of a general prohibition on government granted monopolies. In response, Madison noted toward the end of his letter agreement over the “nuisances” of monopolies, but reminded Jefferson that exceptions should be made for authors and inventors.
While interesting from a historical perspective, these letters shed little light on Jefferson and Madison’s views about the proper scope of copyright (and shed no light on the views of the numerous other Founders). It’s also important to note that Jefferson was apparently in the minority when it came to monopolies; the Bill of Rights as adopted did not include any prohibition on them.
I recently came across a letter by James Madison and sent to Lafayette about Thomas Jefferson, written several months after Jefferson had died. What’s interesting is how it suggests a different story then the one in the revised history of copyright skeptics.
The Marquis de Lafayette played a pivotal role in the American Revolution and its early years. Madison, Jefferson, and Lafayette knew each other since the earliest days of the US. They not only shared a passion for the republican ideals that fueled the revolutions in the US and France, they also shared a lifelong friendship.
Thomas Jefferson passed away on July 4, 1826, leaving an estate that was deeply in debt. Later that year, Madison wrote Lafayette. After recognizing their mutual sadness at the loss of Jefferson, Madison notes the tremendous financial strain Jefferson’s heirs were facing. He describes a lottery held by the government, which helped ease some but not all of the strain. But Madison shares with Lafayette another cause for hope (emphasis added):
The urgency of particular demands has induced the Executor Thomas Jefferson Randolph, who is the Legatee of the Manuscripts, to undertake an immediate publication of a Memoir, partly biographical, partly political and miscellaneous, left in the handwriting of his Grandfather, the proceeds of which he hopes will be of critical use; and if prompt & extensive opportunities be given for subscriptions, there may be no disappointment. The work will recommend itself not only by personal details interwoven into it, but by Debates in Congress on the question of Independence, and other very important subjects coeval with its Declaration, as the Debates were taken down and preserved by the illustrious member. The memoir will contain also very interesting views of the origin of the French Revolution, and its progress & phenomena, during his Diplomatic residence at Paris, with reflections on its tendencies & consequences. A trial will probably be made to secure the copyright of the publication, both in England and in France. In the latter case your friendly counsel will of course be resorted to and I mention it that you may in the mean time be turning the subject in your thoughts. The manuscripts of which the Memoir makes a part are great in extent, and doubtless rich in matter; and discreet extracts may perhaps prove a further pecuniary resource, from time to time, but how soon and in what degree, I have not the means of judging. Mrs. Randolph with her two youngest children, left Montpellier some days ago, on her way to pass the winter with Mrs. Coolidge. Such a change of scene had become essential to her health as well as to her feelings. She has made up her mind for the worst results; a merit which quickens the sympathy otherwise so intense. She was accompanied by her son, Ths. J. Randolph who will endeavor to make arrangements with the Northern Printers for the volume to be published. It will be an Octavo of about three hundred pages.