Part 2 (2/2)

44

Apart from doing away with the need to indicate that you want your works to be copyrighted, we have lengthened the copyright term. We did this without any credible evidence that it was necessary to encourage innovation. We have extended the terms of living and even of dead authors over works that have already been created. (It is hard to argue that this was a necessary incentive, what with the works already existing and the authors often being dead.) We have done away with the need to renew the right. Everyone gets the term of life plus seventy years, or ninety-five years for corporate ”works for hire.” All protected by a ”strict liability” system with scary penalties. And, as I said before, we have made all those choices just when the Internet makes their costs particularly tragic.

45

In sum, we have forgone the Library of Congress I described without even apparently realizing we were doing so. We have locked up most of twentieth-century culture and done it in a particularly inefficient and senseless way, creating vast costs in order to convey proportionally tiny benefits. (And all without much complaint from those who normally object to inefficient government subsidy programs.) Worst of all, we have turned the system on its head. Copyright, intended to be the servant of creativity, a means of promoting access to information, is becoming an obstacle to both.

46

That, then, is one example of the stakes of the debate over intellectual property policy. Unfortunately, the problem of copyright terms is just one example, one instance of a larger pattern. As I will try to show, this pattern is repeated again and again in patents, in trademarks, and elsewhere in copyright law. This is not an isolated ”glitch.” It is a complicated but relentless tendency that has led to a hypertrophy of intellectual property rights and an a.s.sault on the public domain. In fact, in many cases, the reality is even worse: there appears to be a complete ignorance about the value of the public domain. Property's opposite, its outside, is getting short shrift.

47

To paraphrase a song from my youth, ”how did we get here?” Where should we turn to understand the role of intellectual property in the era of the Internet and the decoding of the human genome?

We could turn to the cutting edge of technology or to economics or information theory. But none of those would be as useful a starting place as a letter that was written about two hundred years ago, using a high-tech quill pen, about a subject far from the digital world.

Chapter 2: Thomas Jefferson Writes a Letter 1

On August 13, 1813, Thomas Jefferson took up his pen to write to Isaac McPherson.1 It was a quiet week in Jefferson's correspondence. He wrote a letter to Madison about the appointment of a tax a.s.sessor, attempted to procure a government position for an acquaintance, produced a fascinating and lengthy series of comments on a new ”Rudiments of English Grammar,”

discussed the orthography of nouns ending in ”y,” accepted the necessary delay in the publication of a study on the anatomy of mammoth bones, completed a brief biography of Governor Lewis, and, in general, confined himself narrowly in subject matter.2 But on the 13th of August, Jefferson's mind was on intellectual property, and most specifically, patents.

2

Jefferson's writing is, as usual, apparently effortless. Some find his penmans.h.i.+p a little hard to decipher. To me, used to plowing through the frenzied chicken tracks that law students produce during exams, it seems perfectly clear. If handwriting truly showed the architecture of the soul, then Jefferson's would conjure up Monticello or the University of Virginia. There are a few revisions and interlineations, a couple of words squeezed in with a caret at the bottom of the line, but for the most part the lines of handwriting simply roll on and on--”the fugitive fermentation of an individual brain,”3 to quote a phrase from the letter, caught in vellum and ink, though that brain has been dust for more than a century and a half.

3

I love libraries. I love the mushroom smell of gently rotting paper, the flaky crackle of ma.n.u.scripts, and the surprise of matching style of handwriting with style of thought. Today, though, I am viewing his letter over the Internet on a computer screen. (You can too. The details are at the back of the book.) 4

I think Jefferson would have been fascinated by the Internet.

After all, this was the man whose library became the Library of Congress,4 who exemplifies the notion of the brilliant dabbler in a hundred fields, whose own book collection was clearly a vital and much consulted part of his daily existence, and whose vision of politics celebrates the power of an informed citizenry. Admittedly, the ma.s.sive conflicts between Jefferson's announced principles and his actions on the issue of slavery have led some, though not me, to doubt that there is any sincerity or moral instruction to be found in his words.5 But even those who find him a sham can hardly fail to see the continual and obvious joy he felt about knowledge and its spread.

5

In the letter to Isaac McPherson, a letter that has become very famous in the world of the digerati,6 this joy becomes manifest.

The initial subject of the correspondence seems far from the online world. McPherson wrote to Jefferson about ”elevators, conveyers and Hopper-boys.” Specifically, he wanted to know Jefferson's opinion of a patent that had been issued to Mr.

Oliver Evans. Jefferson devotes a paragraph to a recent retrospective extension of patent rights (he disapproves) and then turns to Evans's elevators.

6

Patents then, as now, were only supposed to be given for inventions that were novel, non.o.bvious, and useful. Jefferson had considerable doubt whether Evans's device, essentially a revolving string of buckets used to move grain, actually counted as ”an invention.” ”The question then whether such a string of buckets was invented first by Oliver Evans, is a mere question of fact in mathematical history. Now, turning to such books only as I happen to possess, I find abundant proof that this simple machinery has been in use from time immemorial.” Jefferson cites from his library example after example of references to the ”Persian wheel”--a string of buckets to move water. The display of scholars.h.i.+p is effortless and without artifice. If the device existed to move water, he declares, Mr. Evans can hardly patent it to move grain. ”If one person invents a knife convenient for pointing our pens, another cannot have a patent right for the same knife to point our pencils. A compa.s.s was invented for navigating the sea; another could not have a patent right for using it to survey land.”7 7

So far as we can tell, this was the only part of the letter that interested McPherson. Later correspondence indicates that he had a pamphlet printed questioning the patent.8 But while it is impressive to see Jefferson's easy command of historical evidence or his grasp of the importance of limiting the subject matter, scope, and duration of patents, these qualities alone would not have given the letter the fame it now has. It is when Jefferson turns to the idea of intellectual property itself that the letter becomes more than a historical curiosity. In a couple of pages, quickly jotted down on a humid August day in 1813, he frames the issue as well as anyone has since.

8

He starts by dismissing the idea ”that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs.” In lines that will sound strange to those who a.s.sume that the framers of the Const.i.tution were property absolutists, Jefferson argues that ”stable owners.h.i.+p” of even tangible property is ”a gift of social law.” Intellectual property, then, has still less of a claim to some permanent, absolute, and natural status.

9

[W]hile it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable owners.h.i.+p is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property.9 10

Jefferson's point here may seem obscure to us. We are not used to starting every argument from first principles. But it is in fact quite simple. It is society that creates property rights that go beyond mere occupancy. It does so for several reasons--reasons of both practicality and natural justice.

(Elsewhere in his writings, Jefferson expands on this point at greater length.) One of those reasons has to do with the difficulty, perhaps even the impossibility, of two different people having full and unfettered owners.h.i.+p of the same piece of property simultaneously. Another linked reason comes from the practicality of excluding others from our property, so that we can exploit it secure from the plunder or sloth of others. The economists you encountered in Chapter 1 have, with their usual linguistic felicity, coined the terms ”rivalrous” and ”excludable” to describe these characteristics.

11

With rivalrous property, one person's use precludes another's.

If I drink the milk, you cannot. Excludable property is, logically enough, property from which others can easily be excluded or kept out. But ideas seem to have neither of these characteristics.

<script>