Copyhype

On August 18, 1787, James Madison proposed to the Constitutional Convention what would become Article 1, Section 8, Clause 8 of the Constitution, granting Congress the authority to make copyright (and patent) laws. To mark 230 years since that occasion, I’m posting the text of a brief talk I gave during the Center for Protection of Intellectual Property’s fourth annual fall conference October 2016 (video of the talk available here). The text is mildly edited for style, since I talk less grammatically correct than I write.

Lawyers rely on history a lot in practice. Common law itself is built on history—we rely on precedent—and when we are interpreting statutory and constitutional provisions, we’ll often turn to history to find insights and help us guide our interpretation.

But, of course, there’s always a danger with using history. Someone who’s trying to make a point may try to find evidence in the historical record to support that point, so there’s a danger of abuse. And perhaps there’s no period more prone to this type of myth and mischief then the Founding period, the period beginning after the end of the Revolutionary War, through the drafting and ratification of the Constitution, and through the first Congress. Because this is when the Constitution was drafted, so a lot of people discussing hot-button topics will try to look at the historical record from the Founding era to find some support for the positions that they are advancing.

And that’s true for copyright law as well, because the constitution does authorize Congress to enact copyright legislation—as well as patent legislation in the same clause, but I’ll be focusing here on copyright (though there is some overlap).

One of the unfortunate trends that a few people have observed is that supporters of a more minimalist copyright, of drawing back the current scope of copyright protection and enforcement, have been trying to advance this narrative that the Founding Fathers would be appalled if they looked at copyright law today, that they intended something completely different from what we see in the statute and in practice.

For example, a few years ago the Electronic Frontier Foundation wrote an article in response to some comments, saying, “Don’t be so sure you’ve got the Founders on your side.” They said, “We suspect that if anyone had described today’s copyright system to, say, Thomas Jefferson, he would have been shocked.”¹Mitch Stoltz, EFF, “Looking Deeper into MPAA’s Copyright Agenda” (June 17, 2013).

Instead they advance this alternate narrative, which goes something like this: the Founders conceived copyright for a very narrow utilitarian purpose; authors’ interests aren’t at the central part of this equation; and they are only given protections begrudgingly through a narrow government privilege in order to advance this narrow utilitarian purpose.

The problem is when I look at the historical record that we have in front of us, I don’t see a lot of evidence for this view. Instead, I see evidence for something different about what the Founders intended.

Very briefly, I think it’s good to get some context of the timeline we’re looking at here before delving into the details. The Revolutionary War ends, and the Continental Congress is put together. Around the early 1780s, a number of authors started asking the states to pass copyright legislation. Chief among them was Noah Webster, whose dictionary bears his name, and he was lobbying a number of state legislatures to pass copyright legislation, along with others like John Ledyard, who petitioned the Connecticut General Assembly.²William Patry, Copyright Law and Practice (1994). In 1783, Connecticut was the first of the states to pass its own copyright legislation.³Copyright Office, Copyright Enactments, 1783-1973 (1973).

Around that same time, the great poet Joel Barlow petitioned the Continental Congress to—while they didn’t have the authority to pass copyright laws on their own—recommend to the remaining states to pass their own copyright laws.⁴Letter from Joel Barlow to the Continental Congress (1783), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org. The Continental Congress agreed, they passed this resolution, and eventually twelve out of the thirteen states did pass their own copyright laws.⁵Copyright Enactments. Delaware was the only state to fail to pass a copyright bill before the drafting of the federal constitution.

That brings us to the drafting of the Constitution. By August 6 during the Constitutional Convention, there was a first draft.⁶Madison Notes on the Debates in the Federal Convention, August 6, Avalon Project. It did not mention copyright or patent law in it, but in the middle of August, James Madison proposed that Congress does have the power to pass copyright and patent legislation, and that was added without debate—or without controversy—and sent to the Committee on Style, which came up with the language that we see today in Article I, Section 8, Clause 8.⁷Patry.

So why did they include copyright? Why did the Founding Fathers think copyright was important enough both at the state level and eventually to be given to the federal congress in order to enact? I think we could get some idea if we turn to the proponents who were pushing for copyright. When Noah Webster wrote a letter to one of the Connecticut representatives in favor of passing copyright legislation, he said, “America must be as independent in literature as in politics, and as famous for arts as for arms.”⁸Oren Bracha, Commentary on the Connecticut Copyright Statute 1783, in Primary Sources on Copyright (1450-1900), (2008). citing Noah Webster, Letters of Noah Webster ed. H.R. Warfel (New York: Literary Publishers, 1953), 1-4. In the same fashion, Joel Barlow, when he wrote to the delegates of the Confederate Congress, said, “America has convinced the world of her importance in a political and military line by the wisdom energy and ardor for liberty which distinguish the present era. A literary reputation is necessary in order to complete her national character. And she ought to encourage that variety and independence of genius in which she is not excelled by any nation in Europe.”⁹Letter from Joel Barlow.

So they thought this was important for the country as a whole, to complete its national character, and set it on equal stage among its international brethren. And how did they propose doing this? Here let’s look at Thomas Paine, who was very influential in the ideas of the American Revolution and the ensuing country. He wrote in 1782, around the same time, that “the state of literature in America must one day become a subject of legislative consideration, for hitherto it has 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 honor and service of letters in the improvement of science unless sufficient laws are made to prevent depradations of literary property.”¹⁰Paine, 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 (1782).

So the idea was that we’ll give property rights to authors, we’ll create a market for these types of expressive and cultural works, and this will induce people to create these types of great works for the benefit of the public.

Property, of course, was central to the Founding Fathers in general. John Adams famously said, “Property must be secured, or liberty cannot exist.”¹¹Discourses on Davila : A Series of Papers on Political History first published in the Gazette of the United States (1790-1791). Property was really important, and they saw copyright as a type of property. By giving authors these exclusive rights, it enabled this marketplace for creative works. This is consistent with other things you hear. When the Continental Congress recommended to the states, the Committee that made that recommendation said they were “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.” You’ll see this elsewhere, where they talked a lot about how this property regime would encourage the types of works that they thought would really benefit culture and the nation as a whole.

Which is curious, because if you do see proponents of weaker copyright protections or more minimal copyright protections, they’ll sometimes say they don’t see a lot of “property talk” in the Founding era¹²See, e.g., Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity (2003).—which is just not evidenced by the historical record. Or they might recognize that, yes, they talked about property, but this was property in the sense of a statutory creation. It was a utilitarian instrument created in order to advance these goals, it wasn’t something that came from the natural rights of the authors.

But again, I don’t see a lot of evidence in the historical record for this. As noted in the passage above from the Continental Congress, the Founders explicitly mentioned natural rights.

And indeed, you’ll see a lot of other references to natural rights as the source of this property for authors. For example, the Massachusetts Copyright Act, which was passed before the Constitutional Convention, said that “the principal encouragement such persons can have to make great and beneficial exertions of this nature must exist in the legal security of the fruits of their study and industry to themselves and as such security is one of the natural rights of all men there being no property more peculiarly a man’s own than that which is produced by the labor of his mind.”¹³Copyright Enactments. Over half of the states that passed copyright legislation included such an explicit reference to natural rights as the source of these property rights.¹⁴Those states were Connecticut, Georgia, Massachusetts, New Hampshire, North Carolina, New York, and Rhode Island.

I think one of the things that underlies this alternative historical narrative used by supporters of weaker copyright is this fallacy that the interests of authors—and authors rights—is somehow distinct from the interests of the public; that we stick one on each end of a scale, and if authors’ rights are too strong then the public’s interest suffers. But I don’t think this is the case. It seems more accurate to say that authors interests and the public’s interests are interrelated and mutually reinforcing. And I think you could see, looking back at the Founding generation, that this is consistent with how they saw property.

This is an idea that was most famously put by Adam Smith, who a lot of the Founders were familiar with.¹⁵See, e.g., Robert L. Hetzel, The Relevance of Adam Smith. He famously said that “it’s not from the benevolence of the butcher, the brewer, or the baker that we can expect our dinner but from their regards to their own interests. By directing that industry in such a manner that produces of greatest value he intends only his own gain and he is in this as in many other cases led by an invisible hand to promote an end that was no part of his intention.”¹⁶Adam Smith, Wealth of Nations. So, in other words, the promotion of the public interest is inherent to the pursuit of self-interest and not something that is external to it.

If we look then to the Founding generation, there is one single reference to the copyright and patent clause in the Federalist Papers, Federalist 43, which was written by James Madison. It’s very brief, but one of the few things that James Madison mentioned about the copyright and patent power is that “the public good fully coincides in both cases with the claims of individuals”. He’s basically echoing Adam Smith’s sentiment here that private interest is what drives the public interest.

This is not an obsolete idea. We saw this recently in Eldred v Ashcroft, a Supreme Court case decided in 2003.¹⁷537 US 186. Justice Breyer had made in his dissent this balance argument consistent with what other copyright minimalists might make, and the majority responded to Justice Breyer in a footnote saying, “Justice Breyer’s assertion that copyright statutes must serve public and not private ends misses the mark. The two ends are not mutually exclusive… copyright law serves public ends by providing individuals with incentives to pursue private ends.”

Or, to put it bluntly, society benefits when creators get paid. The private right that copyright secures is what advances the public’s interest in new expressive works.

I think looking back at this historical record—and I don’t want to draw too strong conclusions, especially in such a brief essay—but I think we could say that maybe the Founding Fathers wouldn’t be so shocked if they looked at the copyright law today. They would see that it is rather consistent with the ideas that they had in mind when they were creating the copyright and patent power. I think especially if they looked at the success of US creative industries and copyright industries today—Hollywood, the record industry, the publishing industry—all these creative contributions to our economy and culture,¹⁸In 2015, the core copyright industries contributed $1.2 trillion to U.S. G.D.P. and employed over 5.5 million U.S. workers. Stephen Siwek, IIPA, Copyright Industries in the U.S. Economy: The 2016 Report (2016). I think they would feel validated that their approach has led to what they intended it to lead to.