Copyhype

A letter written by Thomas Jefferson to Isaac McPherson in 1813 has become canonized into the copyright skepticism movement. You’re probably familiar with the letter, which reads in part:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

This letter has become, in the words of James Boyle, “very famous in the world of the digerati.” ¹Boyle, The Public Domain: Enclosing the Commons of the Mind, pg 18 (2008). Just this past week, law professor David Post referred to this letter in a talk on Jefferson, copyright, and the net, calling it “one of the foundational documents for intellectual property law in the US.”

It’s easy to see why this particular letter is valued so much by copyright’s critics — it expresses sentiments they agree with and it is written by a Founding Father, giving it the weight of authority. One gets the sense from reading those that quote this letter that it presents a sort of idealized version of copyright, one that current copyright law has long since forgotten. ²One egregiously revisionist version of this sentiment can be seen at TechDirt: On the Constitutional Reasons Behind Copyright and Patents.

Despite the sacrosanct nature that this letter has been given, there are some serious problems with it being considered a foundational document in copyright law.

He was talking about something else

For starters, Jefferson was expressly talking about patents, not copyright. It’s odd that the letter is used at all when discussing copyright because of this fact, but it is. ³Along with the examples above, see John Perry Barlow, The Economy of Ideas, Wired (March 1994); Russell McOrmond, Jefferson Debate: A Godwin’s law for copyright discussions? Digital Copyright Canada (Dec. 17, 2005); Nadine Farid, Not in my Library: Eldred v. Ashcroft and the Demise of the Public Domain, 5 Tulane Journal of Technology and Intellectual Property 1, 4-5 (2003); Parker Higgins, A Response to the Harvard Crimson’s “A Sensible Compromise”, freeculture.org (Dec. 23, 2010); Stealing Ideas, Structural Knowledge (July 19, 2011). Though the two share similarities — for example, Congress’s power to make laws concerning both stems from the same Constitutional clause, and Congressional practice concerning one can inform the other ⁴Eldred v. Ashcroft, 537 US 186, 201 (2003). — the differences between them are more relevant here.

On the one hand, it can be said that a patent protects ideas embodied in a new invention or process. Though a patent can’t protect an abstract idea by itself, nor take a known idea out of the public domain, ⁵Aronson v. Quick Point Pencil, 440 US 257, 263 (1979). it does foreclose the use of the ideas described in the invention’s claims. ⁶Diamond v. Diehr, 450 US 175, 187 (1981). This tension between patent protection and the free flow of ideas is inherent in patent law. Jefferson’s description of the nature of ideas in the letter reflects his concerns over this tension, especially in light of the argument that inventors have a natural right to their inventions that Jefferson refers to at the beginning of the letter.

Copyright, on the other hand, protects expression, not the underlying facts or ideas embodied in that expression. ⁷Harper & Row v. Nation Enterprises, 471 US 539, 544 (1985). Copyright protection and the free flow of ideas are fully congruent — and, in fact, by providing an incentive to disseminate expression of ideas, copyright protection encourages the contribution of new ideas into the public domain.

So even if we ignore that Jefferson was specifically talking about patents in this letter, his points have little relevance to copyright.

Jefferson and patent law

Returning back to the subject of patents, it is undeniable that Jefferson in general and this letter in particular has influenced the development of the law. Thomas Jefferson was not only an inventor, but an administrator of patent law under the 1790 Patent Act and author of the 1793 Patent Act. The Supreme Court has relied on his views, including those he expressed to McPherson, as an aid to interpreting patent law on several occassions. ⁸See, for example, Graham v. John Deere, 383 US 1, 8-9 (1966).

The use of Jefferson’s views on patent law, however, has been criticized.

On a number of occasions, Justices of the Supreme Court have relied on the views of Thomas Jefferson as a means of explicating their interpretations of both the patent clause of the Constitution and various patent statutes. In so doing, these Justices have created a Jeffersonian mythology that, in a number of respects, is significantly at odds with the historical record. The Court has, in particular, overrated and over stressed Jefferson’s ostensible influence on the early development and interpretation of the patent law through a selective use of the historical record. ⁹Edward C. Walterscheid, The Use and Abuse of History: The Supreme Court’s Interpretation of Thomas Jefferson’s Influence on the Patent Law, 39 Journal of Law and Technology 195 (1999).

In Who Cares What Thomas Jefferson Thought About Patents? Adam Mossoff also questions the influence of Jefferson on patent law:

In 1966, the Supreme Court discovered that Thomas Jefferson was the founder of American patent law. In Graham v. John Deere Co., the Court first invoked Jefferson’s words that the “embarrassment of an exclusive patent” was a special legal privilege justified only because these “monopolies of invention” served the “benefit of society.” Jefferson the next two decades, leading patent law scholars to remark recently that Jefferson’s “views . . . have proven influential, especially in the Supreme Court.” Following the Court’s practice, intellectual property scholars, especially those engaged in the increasingly rancorous debate over rights in digital content on the Internet, invoke Jefferson’s words as an unassailable historical axiom.

In short, says Mossoff, “Jefferson’s hegemony over the history of American patent law is as indisputable as it is wrong.”

Jefferson and copyright law

While the case for Jefferson’s influence on patent law is subject to debate, the case for his authority on informing copyright law is decidely weak.

Unlike patent law, Jefferson had little to do with copyright law during his lifetime. Copyright protection in the United States was first championed by a group of authors, including Noah Webster and Joel Barlow. ¹⁰Thomas Nachbar, Constructing Copyright’s Mythology, 6 Green Bag 2D 37, 37-38 (2002). In response, a committee in the Continental Congress — consisting of James Madison, Hugh Williamson, and Ralph Izard — drafted a resolution that recommended the states pass their own copyright laws. ¹¹24 Journals of the Continental Congress 326-27 (May 2, 1783). Twelve of the thirteen states had passed such legislation by 1786. When the Constitution was drafted, it was proposals by Madison and Charles Pinckney that eventually became the Copyright Clause. ¹²Dotan Oliar, The (Constitutional) Convention on IP: A New Reading, 57 UCLA Law Review 421 (2009). The Copyright Act of 1790, the first law made pursuant to Congress’s copyright authority, reflected little independent thought on intellectual property — rather, it was England’s 1710 Statute of Anne “phrased in somewhat more modern language and featuring a few omissions, additions, and modifications.” ¹³Oren Bracha, The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant, 25 Berkeley Technology Law Journal 1427, 1453 (2010).

Notably absent from this discussion of the early days of US copyright law is any mention of Thomas Jefferson. Jefferson was a minister to France when the first state copyright acts were passed and was not even in the US when the Constitution was drafted. As law professor Justin Hughes points out, “this, by itself, should largely curtail the use of Jefferson as ‘a reliable source of the meaning of Article I of the Constitution.'” ¹⁴Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 Southern California Law Review 993, 1026 (2006).

While Jefferson wrote about copyright on occassion — he wrote about many subjects — his views on copyright have not been as influential in courts as his views on patent. Justice Breyer makes brief mention to several letters written by Jefferson in his dissent in Eldred v. Ashcroft (though not the McPherson letter); other than that, US courts have not inquired about Jefferson’s views on copyright.

So should we care what Thomas Jefferson thought about copyright law?

Sure, as long as his views are accorded the proper weight. History is important in copyright law — the Supreme Court’s recent oral arguments in Golan v. Holder dealt in part with the effect of the Copyright Act of 1790. But using history appropriately is about more than finding nice sounding quotes from important people. Given Jefferson’s virtually nonexistent role in influencing early US copyright law, his views should be given similar influence today.

Perhaps more importantly, we should be sure we understand what exactly his views were. There is no evidence that Jefferson had any sort of idealized notion of copyright that is inconsistent with modern copyright law; according to Hughes, “if we objectively survey all of Jefferson’s writings, we find that his views on what we now call intellectual property were, to be generous, ‘nuanced’ or perhaps ‘fluid.'”

In this regard, a letter written in 1813 about patents isn’t very helpful.