By , October 19, 2011.

David Post responds, in his article Why Should We Care What Jefferson Thought about Copyright, to my earlier post on the subject regarding Jefferson’s letter to Isaac McPherson.

My answer was “Sure”, we should care what he thought about copyright, as long as we understand what he thought about it and place it in the correct context. His letter to McPherson sheds no light on the former; Jefferson was writing about patents, not copyright.

So whether or not you agree that “Jefferson had more interesting thoughts about a more diverse range of subjects than any other person in history” or that “he was smarter than you, or I, or anyone else currently commenting on intellectual property matters”, it doesn’t change the fact that this particular letter was addressing a separate (and different) topic.

I also respectfully disagree with the following reason given by Post:

“3. Because he was the first person in history to articulate, in one document (and a short one, at that) the foundational theory of intellectual property.”

Accepting for the sake of argument that the nature of ideas is “the foundational theory of intellectual property”, this is just incorrect. Again, Jefferson was talking about patents, not copyright. The two are distinct, and copyright lays no claim to ideas.

I think it could fairly be said that a consensus on (1) the divergence of patent and copyright, (2) the distinction between ideas and expression within copyright, and (3) the basis of copyright protection as statutory rather than through common law had emerged by the mid to late 18th century. In Authors and Owners: The Invention of Copyright, Mark Rose writes that “By 1774, the year in which the Donaldson decision resolved the issue of the perpetuity, all the essential elements of modern Anglo-American copyright law were in place.”

Certainly these and other debates concerning copyright weren’t over and continue today. 1Adrian Johns notes in Piracy: The Intellectual Property Wars from Gutenberg to Gates that opposition to the Donaldson decision emerged “quite soon” but has “never been definitively defeated.” But the “non-exclusive” and “non-rivalrous” nature of ideas was recognized by then, decades before Jefferson wrote to McPherson.

Some examples —

William Warburton, An Enquiry into the Nature and Origin of Literary Property, 1762:

Neither hath it any tendency to confine the powers of genius: for he 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 : for though he may be said to build on my foundation, yet he rears a different superstructure. An inconsiderable addition or improvement however, will not support his claim: the supplying literal or verbal omissions, or the correcting of literal or verbal errors, for instance, will not be sufficient to found a new right in him : and a jury endued with the slightest degree of common understanding may, be the subject what it will, distinguish, or be taught to distinguish, where the difference is essential, and where it is evasive.

Francis Hargrave, An Argument in Defence of Literary Property, 1774:

I Have only one other objection to encounter, so far as the claim of literary property depends on general reasoning. It is an objection, founded on a supposed resemblance between the case of an inventor of a machine, and that of the author of a book. I claim the full benefit of all the ingenious reasons, which others have made use of to distinguish the two cases; but instead of repeating them, I will add one to their number. In my own opinion, the principal distinction is, that in one case the claim really is to an appropriation of the use of ideas; that in the other the claim leaves the use of the ideas common to the whole world. There are not any bounds to the extent of such a claim. It would be impracticable to receive it; because it could never be fairly decided, when an idea was new and original, when it was old and borrowed. The title of the supposed inventor of the machine to the sole making of it, cannot be allowed, without excluding all others, not only from the use of their borrowed ideas; but even from the use of ideas, which may be as original in them, as in the person who first publishes the invention. The same ideas will arise in different minds, and it is impossible to establish precisely, in whom an idea is really original; and perhaps most ideas may in fact be equally original in the greater part of mankind; and priority in the publication of an idea is a most insufficient proof of its originality. This shews, that the perpetual appropriation of the use of an idea to the real or supposed inventor of a machine, would be as inconsistent with the rights of others, as it would be impracticable. But these are not the only arguments against perpetually appropriating the use of knowledge and inventions, It is impossible to sustain the claim consistently with the laws of any country, in which the policy of disallowing monopolies prevails. Every article of trade, every branch of manufacture and commerce, would be affected clogged, if not totally stopped. Such a perpetual appropriation of the use of inventions and ideas would be the most unlimited kind of monopoly ever yet heard of—a monopoly, not of one trade or manufacture, but such, that if it bad ever been endured, it would have ended in a monopoly of almost all trades, and manufactures collectively. I have already shewn, that the appropriation of the right of printing, to an author, is not liable to any of these objections that the claim has its limits and bounds; that the use of ideas and knowledge is as common as it would be, if the right of printing was not appropriated; that the author’s title to the sole sight of printing, is quite consistent with the rights of others; and that his appropriation of his copies, is so far from falling within the true idea of a monopoly, that the appropriation of copies, independently of the author’s right, is even essential to the carrying on the trade; cf. printing in a manner beneficial to the public.

Johann Gottlieb Fichte, Proof of the Illegality of Reprinting, 1793:

We can distinguish two aspects of a book: its physical aspect, the printed paper, and its ideational aspect. The ownership of the former passes indisputably to the buyer upon purchase of the book. He can read it and lend it as often as he likes; he can re-sell it to whomever he wishes, and for as much or as little as he wants or can get; he can tear it to pieces or burn it — and who could quarrel with him? But since people seldom buy a book for such purposes, and most seldom of all simply to display its paper and printing and cover the walls with it, they must assume that when they buy a book they are also acquiring a right to its 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. It is apparent that simple transfer of the book to us does not yet confer ownership of the former, for ideas cannot simply be handed over or bought for cash. They do not become ours just by our picking up a book, carrying it home, and putting it in our bookcase. In order to appropriate the ideas a further activity is necessary. We must read the book, think through its content — insofar as it goes beyond common knowledge — look at it from various points of view, and in this way assimilate it into our own pattern of thought. However, since we would not be able to do this without possessing the book, and since we did not purchase it just for the sake of the paper it contains, buying it must accordingly also confer on us the right to appropriate its content as well. By purchasing the book, that is, we acquire the possibility of appropriating the author’s ideas; but to transform this possibility into reality, we must invest our own effort. Before the publication of his notable works, then, and for a considerable time thereafter, the ideas of the originating thinker, whether of this or past centuries, and most probably of all to come, are the exclusive property of the author. No one has ever acquired the ideas of the Critique of Pure Reason in exchange for the money he paid for it. There are some clear-sighted men now who have appropriated these ideas, but most certainly not just by buying the book, but rather through assiduous and rational study. And, be it said in passing, this process of reflection is the only fitting recompense for instruction of the mind, whether oral or written. The human mind has an inborn propensity to produce agreement with its own pattern of thought and every sign of satisfying this propensity is the sweetest of rewards for all effort expended. For who would want to teach to bare walls, or write books that nobody read? It would be absurd to consider the money paid for such instruction as equivalent in value. It is simply compensation for the sums the teacher must pay to those who, while he is thinking for others, hunt, fish, sow, and harvest for him.

What is certainly offered for sale through the publication of a book, then, is first of all the printed paper, to anyone, that is, who has the money to buy it, or a friend who will lend it to him; and secondly, the content of the book, namely to anyone who has enough brains and diligence to appropriate it. As soon as the book is sold, the former ceases to be the property of the author (whom we can still consider here as the seller) and passes exclusively to the buyer, since it cannot have more than one lord and master. The latter, however, which on account of its ideational nature 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.

By the time Jefferson wrote this letter on patents, then, few would find any relevance to copyright. It was well-established that copyright protection did not extend to the ideas in a particular work, and I do not know of anyone who seriously argued that it should, let alone that it should as a matter of natural right.

So, in my opinion, even if we look to this letter for principles to apply to copyright law, there is little we can take away. Post mentions concerns over tension between copyright law and free speech, a relatively recent debate. 2As I note in Copyright and Censorship, it wasn’t until 1969 — nearly 200 years after the first colonies passed copyright acts — that this tension began to receive attention from scholars and courts. But the freedom of ideas from copyright protection is one of the “free speech safeguards” baked into copyright doctrine; “Due to this distinction,” said the Supreme Court in 2003, “every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication.” 3Eldred v. Ashcroft, 537 US 186, 219-221 (2003). This sounds like something Thomas Jefferson would encourage.


1 Adrian Johns notes in Piracy: The Intellectual Property Wars from Gutenberg to Gates that opposition to the Donaldson decision emerged “quite soon” but has “never been definitively defeated.”
2 As I note in Copyright and Censorship, it wasn’t until 1969 — nearly 200 years after the first colonies passed copyright acts — that this tension began to receive attention from scholars and courts.
3 Eldred v. Ashcroft, 537 US 186, 219-221 (2003).