Copyhype

History is fascinating, but I’m not a historian. That’s one of the reasons I use footnotes on this site — it’s a way to “show my work” so that readers can see the basis for factual claims I make, including historical claims. And anyone who shares this fascination with history knows how common it is to find inaccurate, misleading, or just plain wrong claims.

There’s several problems with bad history. Inaccurate history is wrong on its face. We as a society value truth over falsity. And our understanding of history can be both a powerful tool for positive change – “Those who cannot remember the past are condemned to repeat it.”¹ – or an ideological weapon – “Who controls the past controls the future: who controls the present controls the past.”²

Second, using inaccurate history to advance an argument should send up red flags. If historical claims are sloppy, than it’s reasonable to question what other parts of an argument are sloppy. And if history is deliberately misstated, than it’s entirely fair to wonder about a hidden agenda.

Copyright and History

Since copyright is a legal doctrine, much of what is written about it is by lawyers, jurists, and legal scholars — not historians. Lawyers are advocates, and thus, more often than not, use history more as a tool for arguing a particular interpretation of a legal doctrine rather than studying it as a field in and of itself. That’s not to say that there aren’t excellent legal historians out there; it’s just imperative to recognize the limitations of historical research from nonhistorians, particularly those with a legal background.

Especially when inaccuracies have no problem being repeated and spreading in legal scholarship. Law professor Justin Hughes has observed this phenomenon in the IP field:

The lawyer—hence, most legal academics—prepares just enough precedent to convince. And that may produce one of the little oddities about legal scholarship. Instead of researching and citing primary materials, intellectual property scholarship frequently refers only to other legal scholarship for evidence of nonlegal data. As I will show, the practice of citing only legal scholarship for evidence of nonlegal data means that a few casual but incomplete historical claims by a few respected legal scholars can get replicated through the system—and beyond. And this has a rather twisted effect: a wonderfully heartening development— nonspecialists engaged in a more open, more popular discourse about copyright—gets accidentally co-opted into repeating these historically doubtful claims.³

It seems to me that there are two general purposes to this historical revisionism. One is an appeal to nostalgia: copyright law at the dawn of the United States represented an ideal version of the law, with correctly recognized purpose and appropriately balanced means. Somewhere along the line, we’ve lost sight of how copyright should work. If we could only go back to the romanticized version of what the Framers clearly intended, society and creators would be much better off.⁴

The second is a legal argument: copyright skeptics disagree with the choices Congress has made in shaping copyright law. Perceiving a lack of power to influence Congress, they play the trump card: the Constitution. If you can successfully argue that the language or intent of the Copyright Clause constitutionally limits what Congress can do, then you can get a court to strike down those parts of copyright law you disagree with without having to go through that pesky legislative process.⁵

Last week, I tackled the historically-based trope that Hollywood was founded on piracy, but I’m certainly not the first to counter inaccurate historical claims in copyright scholarship. Previously, I noted Thomas Joo’s work on the weak historical claims of free culture scholars, especially regarding digital sampling. Hughes has written about how “incomplete historical claims” have been advanced in arguments about the “propertization of intellectual property.”⁶ Schwartz and Treanor have noted that “the evidentiary support is very thin” for originalist arguments by “IP Restrictors” regarding the Copyright Term Extension Act.⁷ In his article, Who Cares What Thomas Jefferson Thought about Patents: Reevaluating the Patent “Privilege” in Historical Context, Adam Mossoff describes the ”near-universal misuse of history by lawyers and scholars today, who rely on Jefferson as undisputed historical authority in critiquing expansive intellectual property protections today” (a point I expanded on in my post, Who Cares What Jefferson Thought About Copyright?)

Copyright and the Founding of the United States

Especially important to copyright is the founding period of the United States, from the ratification of the Articles of Confederation following the Revolutionary War to the adoption of the first US Copyright Act (1781—1790). This is the time period when US copyright law was born; the creation of the Copyright Clause in the Constitution by the Framers and the passage of the first Copyright Act have been explored thoroughly by scholars and others seeking insights into how we should deal with the scope and purpose of modern day copyright law. It is an especially important time period to look at when making Constitutional arguments, since the original intent or original meaning of Constitutional clauses can help guide their interpretation.

Below is the first part of some of the common myths I’ve observed in this area (with more coming later this week).

The Copyright Clause was a compromise, or the result of a debate.⁸

This claim is completely lacking in merit. Madison proposed the idea for the Copyright Clause in the last weeks of the Constitutional Convention.⁹ The proposal was referred to the Committee on Detail without comment or objection. On September 5, David Brearley from the Committee of Eleven submitted the proposal, which now read “To promote the progress of Science and useful arts by securing for limited times to authors & inventors, the exclusive right to their respective writings and discoveries”, to the members of the Convention.¹⁰ Again, there was no recorded discussion of the clause, and according to Madison’s notes on the debates in the convention, the addition of the clause to the Constitution was agreed to “nem: con:” — without contradiction.

There is the barest of discussion on the Clause after the Constitution was finalized. Madison refers to it once, and only very briefly, in the eighty-five Federalist Papers, making it one of the least discussed clauses of the Constitution in that source.¹¹ It is mentioned only in passing in what are considered the anti-Federalist papers.¹² This paucity of discussion extended to the state ratification debates. There, the clause only appeared a handful of times, and only very briefly — in a speech by Hugh Williamson and an essay by James Iredell in North Carolina, and in remarks by Thomas McKean in Pennsylvania.¹³ Very little substantive discussion accompanied the legislative process of the first US Copyright Act in 1790 as well.¹⁴

This lack of discussion should not be surprising. The Federal Constitutional Convention was called just four years after the US had ended its war for independence against Great Britain. The national government operating under the Articles of Confederation was virtually powerless to address the foreign threats and domestic turmoil the states were experiencing at the time.¹⁵ The Framers had far more pressing matters than a copyright law.¹⁶

The Constitution itself was the result of many compromises — particularly how states should be represented in the national government (the Great Compromise) and how slaves should be counted for purposes of representation and taxation (the Three-fifths Compromise). But there was no “compromise” to speak of concerning Congress’s power to grant copyrights; the power simply wasn’t high on the list of the Framers’ priorities.

It’s important to remember that the Framers of the US Constitution weren’t working on building a government. They already had a government — thirteen of them, to be exact. What they were working on building was a federal government. The states were sovereign governments, and like most sovereigns of the time and today, they had indefinite and unenumerable powers; that is, they were constrained only by the inalienable rights of citizens.

The states had inherited their law from England, which had had a copyright statute since 1710. By the time the Framers had gathered to work on the new Constitution, twelve of the thirteen states had passed their own copyright statutes. The “purpose” of copyright law in general, then, was fairly established, and, as noted above, wasn’t debated as part of the ratification of the Constitution.

The only conclusion that can be drawn from this time is this: the purpose of the Copyright Clause in the Constitution was to create uniformity in copyright law. In his April 1787 paper, “Vices of the Political System of the U. States,” James Madison notes as his fifth “vice”, the “want of concert in matters where common interest requires it,” which includes “the want of uniformity in the laws concerning naturalization & literary property.” His brief mention of the Clause in the Federalist Papers reiterates this point, saying, “The States cannot separately make effectual provisions” to protect authors. The same is true in the ratifying conventions: Thomas McKean, in one of the few mentions of the Clause, noted, “The power of securing to authors… the exclusive rights to their writings… could only with effect be exercised by the Congress. For, sir, the laws of the respective states could only operate within their respective boundaries and therefore, a work which has cost the author his whole life to complete, when published in one state, however it might there be secured, could easily be carried into another state in which a republication would be accompanied with neither penalty nor punishment—a circumstance manifestly injurious to the author in particular…”¹⁷

Copyright wasn’t thought of as “property” or a natural right.

In his widely cited book Copyrights and Copywrongs, Siva Vaidhyanathan makes this claim. According to Vaidhyanathan, the original principle of copyright was “as an incentive to create”. This principle ”has been challenged in recent decades by the idea of copyright as a ‘property right’”, a trend that runs “counter to the original purpose of American copyright.” He claims “Madison did not engage in ‘property talk’ about copyright”; or the founders in general “did not argue for copyrights or patents as ‘property.’”¹⁸

History tells a different story, however.

As noted above, copyright was not a top priority at the dawn of the United States, between finishing a war with one of the most powerful empires at the time and creating a new nation. But by the 1780′s, authors had begun seeking legal protection from the Continental Congress under the Articles of Confederation. On March 10, 1783, the Continental Congress resolved “That a committee be appointed to consider the most proper means of cherishing genius and useful arts through the United States by securing to the authors or publishers of new books their property in such works.”¹⁹ On May 2nd, according to the Journals of the Continental Congress, “The committee, consisting of Mr. [Hugh] Williamson, Mr. [Ralph] Izard and Mr. [James] Madison, to whom were referred sundry papers and memorials from different persons on the subject of literary property, being persuaded that nothing is more properly a man’s own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius, to promote useful discoveries and to the general extension of arts and commerce,” moved for a resolution that recommended the States pass statutes protecting copyright.²⁰

Justin Hughes speculates that the “sundry papers and memorials” may have included a 1782 pamphlet from Thomas Paine.²¹ In the introduction to that pamphlet, Paine rails against the unauthorized reprinting of a work by French writer Abbe Raynal, saying, “It may with propriety be remarked, that in all countries where literature is protected, and it never can flourish where it is not, the works of an author are his legal property; and to treat letters in any other light than this, is to banish them from the country, or strangle them in the birth.”²² In a footnote, Paine adds:

The state of literature in America must one day become a subject of legislative consideration. Hitherto it hath been a disinterested volunteer in the service of the revolution, and no man thought of profits: but when peace shall give time and opportunity for study, the country will deprive itself of the honour and service of letters and the improvement of science, unless sufficient laws are made to prevent depredations on literary property.

Hughes adds that it’s also reasonable to assume petitions from author Joel Barlow — who wrote, “There is certainly no kind of property, in the nature of things, so much his own, as the works which a person originates from his own creative imagination” — and Noah Webster — who was riding up and down the United States in support of a copyright law with an open letter to legislators written by Princeton professor Samuel Stanhope Smith that read in part, “Men of industry or of talent in any way, have a right to the property of their productions” — were also in front of this committee.

So far, plenty of references to copyright as property (and a lack of any arguments in these contexts against the notion) — and we haven’t even gotten to the Constitutional Convention yet.

Twelve of the thirteen States followed the Confederate Congress’s recommendation and passed copyright statutes. Here, the “property talk” continues. The preamble to the Massachussets and Rhode Island statutes proclaimed that “such security is one of the natural rights of all men, there being no property more peculiarly man’s own than that which is produced by the labour of his mind.” The copyright acts of Maryland, Massachussets, and New Hampshire declared books the “sole” or “exclusive property” of authors. Maryland and North Carolina’s acts were referred to as acts protecting “literary property.”

And here we also have more “property talk” from James Madison himself. On November 15, 1785, the Virginia House of Delegates, acting on the recommendation, “Ordered, That leave be given to bring in a bill ‘for securing to the authors of literary works an exclusive property therein, for a limited time;’ and that Messrs. Madison, Page and Tyler, do prepare and bring in the same.”²³ The next day, Madison himself presented the bill, titled “An act for securing to the authors of literary works an exclusive property therein for a limited time.” And, as noted earlier, less than two years later, prior to the Constitutional Convention, James Madison wrote that one of the “vices” of the current government was the lack of uniformity in laws concerning “literary property.”

Additionally, evidence from the legislative history of the first Copyright Act shows that some in Congress explicitly thought of copyright through the lens of property. An attempt to pass a copyright bill stalled in the first session of the First Congress. During the second session, more progress was made. On January 25th, 1790, Congressman Aedanus Burke suggested addressing copyrights and patents in separate bills to get things moving. He urged his fellow Representatives of the importance of passing a copyright bill, noting “several gentlemen had lately published the fruits of their industry and application, and were every hour in danger of having them surreptitiously printed.” Later, Burke noted it would be easier to address a copyright bill first, since the law would likely be short since “it is almost as easy to ascertain literary as any other kind of property.”²⁴

Footnotes

1. George Santanaya, The Life of Reason; or the Phases of Human Progress (1905). [↩]
2. George Orwell, 1984 (1949). [↩]
3. Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 Southern California Law Review 993 (2006). [↩]
4. See, for example, James Boyle, The Public Domain: Enclosing the Commons of the Mind, pg. 23 (2008): “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… 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”; Gerry Canavan, The founding fathers had copyright right, Independent Weekly (May 27, 2009); Robert Darnton, video (Dec 11, 2009):”The founding fathers got it right, and Hollywood got it wrong.” [↩]
5. While there is plenty of scholarship advancing this argument, it owes much to Lawrence Lessig, who put the argument into action by bringing four legal cases in the past decade to challenge recently enacted copyright laws on constitutional grounds: Eldred, Golan, Kahle, and Luck’s Music Library. All four cases failed, and the Supreme Court in Eldred commented that petitioners had crafted what was largely a disagreement over Congressional policy behind a “facade” of “inventive constitutional interpretation.” [↩]
6. Hughes at 1083. [↩]
7. Paul M. Schwartz and William Michael Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property, 112 Yale Law Journal 2331, 2378 (2003). [↩]
8. “So in the early republic and the first century of American legal history, copyright was a Madisonian compromise, a necessary evil, a limited, artificial monopoly, not to be granted or expanded lightly” Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity, pg. 24 (2003); “Like much of the language in the Constitution, this clause was the product of compromise.” Linda L. Brenna, Social, Ethical and Policy Implications of Information Technology, pg. 224 (2004). [↩]
9. James Madison, Debates in the Federal Convention of 1787, August 18, 1787 (online). [↩]
10. James Madison, Debates in the Federal Convention of 1787, September 5, 1787 (online). [↩]
11. Federalist No. 43. [↩]
12. Letters from the Federal Farmer, Letter XVIII, January 25, 1788 (online). [↩]
13. Schwartz and Treanor at 2376. [↩]
14. See William Patry, Copyright Law and Practice, The First Copyright Act (1994). [↩]
15. See Bruce Chadwick, Triumvirate: The Story of the Unlikely Alliance That Saved the Constitution and United the Nation, pp. 8-9 (2009). [↩]
16. Prior to the Convention, James Madison himself referred to the need for uniform laws concerning literary property as an instance “of inferior moment.” [↩]
17. Thomas McKean Speaking at the Pennsylvania Convention on the Ratification of the Federal Constitution. [↩]
18. Similar claims include Jacob Huebert, Libertarianism Today, ch. 10 (2010), “The people who enacted IP laws in the first place knew … that they were not recognizing some preexisting natural property right, but just granting a temporary privilege.” [↩]
19. 24 Journals of the Continental Congress 180. [↩]
20. 24 Journals of the Continental Congress 326. [↩]
21. Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson at 1021. [↩]
22. On the Affairs of North America: In Which the Mistakes in the Abbe’s Account of the Revolution of Amreica [sic] are Corrected and Cleared Up. [↩]
23. Journal of the House of Delegates of the Commonwealth of Virginia, pg. 39. [↩]
24. Annals of Congress, 1st Cong., 2nd sess., 1080. [↩]

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