In previous posts I’ve noted the historical origins of the opposition to intellectual property1 and in particular key libertarian and proto-libertarian thinking on this matter.2 Probably the earliest and most consistent libertarian opposition to IP came from Benjamin Tucker;3 and, in modern times, Konkin, McElroy, and Palmer. Then, the Internet happened, and the IP issue eventually rose from the background to the fore, and Austrian, anarchist, and left-libertarians started examining—and opposing—IP with a renewed interest.
It seems clear that the father of libertarian IP opposition is Benjamin Tucker. He was incredibly good on this topic at a time when even radicals like Lysander Spooner were bad on it;4 other influential libertarians who were bad or weak on IP include Ayn Rand and Andrew Galambos, and proto-libertarians like Paine and Jefferson. But there were other thinkers around Tucker’s time who were also good on the IP issue, including Tak Kak (James Walker)5 and the nineteenth-century Jacksonian editorialist William Leggett.
Leggett’s views on this issue can be found in the final Part of his 1834 book Democratick Editorials: Essays in Jacksonian Political Economy, which contains three short essays (repixeled below) on copyright. As noted by Tom Palmer in his article Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects:
Arguments such as Spooner’s and Rand’s encounter a fundamental problem. While they pay homage to the right of self-ownership, they restrict others’ uses of their own bodies in conjunction with resources to which they have full moral and legal rights. Enforcement of a property right in a dance, for example, means that force can be used against another to stop him from taking certain steps with his body; enforcement of a property right in an invention means that force can be used against another to stop him from using his hands in certain ways. In each case, an intellectual property right is a claim of a right over how another person uses her body.
As the pro-liberty journalist William Leggett, a leader of the Jacksonian Loco-Foco party and editor of the New York Evening Post, wrote,
We do not wish to deny to British authors a right; but we do desire that a legal privilege, which we contend has no foundation in natural right, and is prejudicial to “the greatest good of the greatest number,” should be wholly annulled, in relation to all authors, of every name and country. Our position is, that authors have no natural right of property in their published works, and that laws to create and guard such a right are adverse to the true interests of society.
Leggett opposed copyright and patent rights for two reasons: First, he argued that intellectual property rights stifled the free spread of ideas and damaged the public interest. [“If the principle of copyright were wholly done away, the business of authorship, we are inclined to think, would readily accommodate itself to the change of circumstances, and would be more extensively pursued, and with more advantage to all concerned than is the case at present.”] Second, he argued that such rights were in reality statutory monopolies that infringed upon the rights of others to the ownership of their own bodies:
Our position that an author has an exclusive natural right of property in his manuscript, was meant to be understood only in the same sense that a mechanic has an exclusive natural right of property in the results of his labour. The mental process by which he contrived those results are not, and cannot properly be rendered, exclusive property; since the right of a free exercise of our thinking faculties is given by nature to all mankind, and the mere fact that a given mode of doing a thing has been thought of by one, does not prevent the same ideas presenting themselves to the mind of another and should not prevent him from a perfect liberty of acting upon them.
Leggett’s argument, while containing strong consequentialist elements, rests on the intimate relationship between liberty and property:
The rights of corporeal property may be asserted, without the possibility of infringing any other individual’s rights. Those of incorporeal property may obviously give rise to conflicting claims, all equally well founded…. [I]f you assert an exclusive right to a particular idea, you cannot be sure that the very same idea did not at the same moment enter some other mind.
Here are the final three chapters from Leggett’s book:
RIGHTS OF AUTHORS
January 27, 1837.
The whole question of the propriety of an international copyright law, or a copyright law at all, resolves itself, we think, into the enquiry whether such a regulation would promote the greatest good of the greatest number. This is the principle which we conceive constitutes the basis of the most important rights of property. They are artificial rights, not rights of nature. They are created by laws, not merely confirmed by them. This is obviously the case with regard to that species of property which the political institutions of all civilized countries regard with peculiar deference, and secure with particular care, and to which the distinctive appellation of real estate is given. The right of property in land, like the right to breathe the vital air of heaven, is, by nature, common to all mankind; and the only just foundation of individual and peculiar rights is furnished by the law of the land. Locke, who goes as far as any writer in tracing the right of property to inherent causes existing anterior to political institutions, does not maintain that any thing gives to an individual a distinct and exclusive right to land, except in as far as by occupying it and mixing his labour with it, it becomes his own in such a sense that you cannot take it away without also taking the fruits of his labour, which, he contends, are his own by nature. Paley, on the contrary, in his book on Relative Duties, considers the law of the land the only real foundation of territorial property.
But let us, in conformity with the opinions of Locke and other accredited writers, concede that men have a natural right of property in the productions of their own industry and skill; that the mechanic, for example, has an exclusive right to the article he manufactures; the fisherman to the fish he catches; and the fowler to the birds he shoots. To the same extent the author has an exclusive natural right of property in the book he composes; that is, he has a natural right to the manuscript, so long as he chooses to retain it to himself. The process by which the mechanic fabricates a particular article is his property, so long as he keeps it secret. The peculiar arts of the fisherman and fowler are their property, in the same way, until they communicate them. And the thoughts of the author are his property, equally, until he publishes them to the world. In all these cases, alike, so far as natural rights are concerned, they then become common property. Every body is at liberty to imitate the article manufactured by the mechanic; to practice the artifices of the fisher and fowler; and to copy the book of the author. Any further exclusive or peculiar property in them has no other foundation than the law.
The right of exclusive property, of the exclusive use and benefit of the fruits of one’s own labour, is the great and secure foundation of social order and happiness. Without it, man would never rise above a semi-barbarous condition; and in those communities where it is most securely guarded, we invariably find the highest degree of moral and intellectual refinement, the greatest general prosperity, and the most advanced condition of all the arts which sustain and embellish life. But we would have it understood, in passing, that this important and fundamental right is violated as fatally by unequal laws, by laws which give peculiar facilities for the acquisition of wealth to the few, and deny them to the many, as by those more obviously arbitrary edicts, which directly and openly deprive the labourer of his reward. The true security of the right of property consists in equal legislation.
If we are correct in the position assumed, that the exclusive natural right of an author to his production, like that of a mechanic to the fashion or device of his table or chair, extends no further than to his immediate copy, the question for society then to determine is, whether it is proper to create and guard this right by legal enactments; and the decision of it, in our view of the subject, should rest solely on the consideration of the effect it would have on the interests of the great mass of mankind, or, to repeat Bentham’s phrase, it should be decided according to the principle of “the greatest good of the greatest number.” It is entirely within the competency of the law to make a literary production property, either absolutely and in perpetuity, or in a qualified sense, and, for a limited period of time. If government should choose to do neither, but leave the published book as free to be copied, as a new device in cutlery, a new style in dress, the author would be without reasonable ground of complaint, since he entered into the vocation without the prospect of any other advantage, than what necessarily and inalienably belongs to the opportunity of the first use of the fruits of his labours.
But if the law undertakes to establish a certain kind of property in the productions of authorship, “in the fruits of intellectual exertion,” to use the language of our correspondent, it must fix the limit somewhere; and those intellectual labourers excluded from the vineyard, (and there would necessarily be many such) would then have some reason to complain of partial legislation. The farmer who, by a long and careful study of the processes of nature, discovers an improved method of tillage and culture, by which he can make his field yield a harvest of twofold abundance, ought surely not to be excluded from the category of those who benefit mankind by the fruits of intellectual exertion; yet the neighbouring farmer, who ploughs the adjoining field, copies his mode of tillage, and no one ever thinks of instituting a law to give the first a right of property, and secure to him the exclusive advantages of his discovery. The artist who spends days and nights of patient intellectual toil in devising tasteful and symmetrical patterns for the lace worker and silk weaver, sees the fruits of his intellectual labour copied as soon as they are exhibited; and does not dream of asking the security and advantage of any peculiar legal rights. The natural advantage of the inventor, that he is first in the market, presents a sufficient stimulus to exertion, and secures, in most cases, an adequate reward.
If the principle of copyright were wholly done away, the business of authorship, we are inclined to think, would readily accommodate itself to the change of circumstances, and would be more extensively pursued, and with more advantage to all concerned than is the case at present. It is very much the fashion of the day to deride and decry cheap publications. We are not of the number who can join in the censure. The great good which the invention of printing originally effected, was to diffuse literature, and make books accessible to myriads, who were precluded from them before, by reason of the enormous prices at which manuscript copies were sold. What the first rude efforts of the printing-press were, in comparison with the slow and painful manipulations of the cloistered scribe, the art of cheap printing of the present day is to that art as it was practised by our fathers. It is spreading literature over the entire land. It is penetrating with it into every nook and corner of society. It is offering its golden fruits, ay, richer than gold, to the poor and ignorant, as well as to the rich and educated. It is awakening millions of human beings to a sense of their birthright; to acknowledge that they are God’s creatures, and not beasts that perish. We are the friend of cheap literature, for it is the friend of humanity, and is exercising an important influence in the illustration of the most interesting problem of morals, the infinite perfectibility of man. If there were no copyright laws, all literature would take a cheap form, and all men would become readers. It would take a cheap form to preclude competition; and it would be widely diffused because of its cheapness. Instead of an edition of two, or three, or five thousand copies, which never constitute, as a general rule, the maximum of a popular author’s success, twenty, thirty, and perhaps a hundred thousand would be readily disposed of. Let us withdraw our attention, for an instant, from a contemplation of the interests of authors, to consider those of mankind at large. Who can fail to see how vastly the general benefit would be promoted? What a noble spectacle an entire nation of readers would present! With what intelligence and order would not its affairs be conducted! And if knowledge is power, what a vast influence it would exercise in the counsels of nations, and in directing the destinies of mankind!
But there is no need that we should throw the interest of authors out of sight in this consideration. On the contrary, we believe the benefit to themselves would be in an equal ratio with that to the community at large. If they were left without the protection of a copyright, their business would assume new forms. They would connect themselves, in schemes of extensive publication, with those whose facilities would put competition at defiance. The advantage of a first copy is in itself incalculable. With publishers of large capital, whose measures are wisely taken, it is worth more than ordinary copyrights. The Harpers, if we are correctly informed, pay British writers, for a duplicate copy in advance of publication in London, as much as some of the copyrights of some of the most favoured authors at home will command. Nobody attempts to reprint the Penny Magazine and Penny Cyclopedia upon Jackson; simply because, having by arrangement with the British publishers, the benefit of a first copy, he puts it in so cheap a form, and prepares so vast an edition, that competition is intimidated, as it has everything to lose and but little to gain.1 The advantages of a first sale, when the preparatory steps are duly and discreetly taken, are prodigious. They constitute the author’s natural and inalienable right; and we repeat our strong conviction that if he were left alone, the interest of both author and public would be most effectually promoted.
If we are right in the view we have taken of this subject; if it can be shown that the present system is wrong in itself, as tried by the greatest good principle; the argument in favour of the extension of the copyright law, so as to embrace the authors of other countries, falls to the ground. It is the same argument which we constantly hear used in favour of extending the grants of special charters. But if an evil exists in our system, it is the duty of good citizens to endeavour to abolish it, not to make it an excuse for instituting other evils. Our correspondent says truly and eloquently, that there is no ground on which our Congress can be bound to act according to a decision of the House of Lords, nor on which they are not at liberty, setting authority and precedent aside, to revert to the first principles of justice and expediency. Our institutions are founded on a maxim widely different from the fundamental principle of other governments; and it is proper that our legislation should be marked by an equally distinctive character. It is for this young and vigorous republic to set an example to the nations of the old world; and after those glorious principles of equal liberty which constitute the basis of our political fabric, we hardly know a measure which would tend in a larger degree to promote the best interests of mankind, than the enfranchisement of the press from the exclusive privileges of authorship.
THE RIGHTS OF AUTHORS
February 11, 1837.
Able pens are wielded against us on the subject of literary property. But as we have no end to answer which is not equally that of truth, we insert the arguments of our antagonists with as much readiness as our own, certain that the ultimate result of discussion, in this, as in regard to every topic within the embrace of human reason, must be the establishment of sound principles. . . .
. . .
It is true that too many of those whose genius has rendered them immortal, have employed their noblest efforts to embellish the solid structure which tyranny erects on the prostrate liberties of man. The two divinest bards, that ever addressed their strains of undying harmony to the enraptured ears of mortals, were the flatterers and upholders of aristocratic pride, and the scoffers of the rights of the people. Homer and Shakspeare “licked absurd pomp,” and taught men to regard as a superior order of beings those whose only claims to preeminence were founded in rapine and outrage. But when we look back through the bright list of names which English literature presents, we do not find this censure to be of general application. He from whom the remark is derived, as to the potent influence of those who frame a nation’s ballads in forming the national character—sturdy old Andrew Fletcher of Saltoun—did not address himself to a caste; he addressed himself to the people, and stood forward ever the eager and intrepid champion of their rights. Milton did not address himself to a caste, but to mankind; and Marvell and Harrington were animated in their writings by the single and exalted motive of improving the political condition of their race.
But we need not contest the sentiment to which we have offered this brief reply, since it does not touch our argument. It is for the very purpose that “the Republic of Letters” may be upheld by the people, and that it may be composed of the people, that we desire to see the principle of literary property abrogated. We do not wish to deny to British authors a right; but we desire that a legal privilege, which we contend has no foundation in natural right, and is prejudicial to “the greatest good of the greatest number,” should be wholly annulled, in relation to all authors, of every name and country. Our position is, that authors have no natural right of property in their published works, and that laws to create and guard such a right are adverse to the true interests of society. We concede at once, and in the fullest manner, that if the propriety of establishing a right of property in literary productions can be shown, the principle ought to be of universal application; that it ought not to be limited to any sect, or creed, or land, but acknowledged, like the plainest rights of property, wherever civilization has extended its influence. An author either has a natural and just right of property in his production, or he has not. If he has, it is one not to be bounded by space, or limited in duration, but, like that of the Indian to the bow and arrow he has shaped from the sapling and reeds of the unappropriated wilderness, his own exclusively and forever.
With regard to the influence which British literature exercises in forming the popular mind and character in this country, we see no cause to fear unfavourable results, if American literature, to which we naturally look to counteract the evil tendencies of the former, is not excluded, by reason of the incumbrance of copyright, from an equally extensive circulation. Leave error free to flow where it listeth, so that truth is not shut out from the same channels. Give both an equal opportunity, and who can doubt to whom will belong the victory? “Who knows not,” says John Milton, “that truth is strong, next to the Almighty? She needs no policies, nor stratagems, nor licensings, to make her victorious. Those are the shifts and the defences that error uses against her power.” It was under the influence of British literature exclusively, and in many instances of education obtained in British colleges, that our national independence was asserted and achieved; and it would be strange, indeed, if we should be rendered now unmindful of its value, by the tawdry and sickening aristocracy which bedizens the pages of British novels and romances. “The men who write the ballads” are not those whom a copyright stimulates into the exercise of their powers; and if they were, the Americans, thank heaven! are not the people whom ballads move with irresistible influence. We go to our political affairs, as mathematicians go to their abstruse labours; with their intellectual energies screwed to too high a pitch, to be shaken from their purpose by the sounding of brass or the tinkling of cymbals.
We turn now to a consideration of the article of our correspondent, who has ingeniously erected his structure of logical arguments on a foundation furnished by ourselves. Our position that an author has an exclusive natural right of property in his manuscript, was meant to be understood only in the same sense that a mechanic has an exclusive natural right of property in the results of his labour. The mental process by which he contrived those results are not, and cannot properly be rendered, exclusive property; since the right of a free exercise of our thinking faculties is given by nature to all mankind, and the mere fact that a given mode of doing a thing has been thought of by one, does not prevent the same ideas presenting themselves to the mind of another and should not prevent him from a perfect liberty of acting upon them. The right which we concede to the author is the right to the results of his manual labour. The right which is claimed for him is the right to the ideas which enter into his mind, and to which he gives a permanent and communicable form by writing them down upon paper.
But when we pass from corporeal to incorporeal property, we immediately enter into a region beset with innumerable difficulties. The question first naturally arises, where does this exclusive right of property in ideas commence? The limits of corporeal property are exact, definite, and always ascertainable. Those of incorporeal property are vague and indefinite, and subject to continual dispute. The rights of corporeal property may be asserted, without the possibility of infringing any other individual’s rights. Those of incorporeal property may obviously give rise to conflicting claims, all equally well founded. If you catch a fish in the sea, or shoot a bird in the forest, it is yours, the reward of your patience, toil, or skill; and no other human being can set up an adverse claim. But if you assert an exclusive right to a particular idea, you cannot be sure that the very same idea did not at the same moment enter some other mind. This is obviously and frequently true with respect to single thoughts, and it will readily be conceived that it may happen with respect to a series. Language is the common property of all mankind, and the power of thought is their common attribute. Shall you then say to a person who has expressed certain ideas in certain words, you shall have an exclusive right of property in those ideas so expressed, and no other human being shall ever use the same sentiments, without incurring a penalty for his tresspass?
If the author has a natural right of property in the ideas of his mind, once committed to paper, it is a right which ought to be universally acknowledged, and he should be allowed to enjoy exclusively the profit of the use of his property in every civilized nation of the world. But where does this right commence? How many ideas must be joined together before they constitute a property? If a man construct an edifice, every brick or board of the entire fabric is his. He may sell it, or lend it, or convert it to what use he will; but no one can take it against his consent without committing a robbery. Is the author’s edifice of ideas equally his, in its component materials, as well as in their aggregate combination? Every sentence, perhaps, contains an idea, so natural that it is likely to occur to many minds, and expressed in such obvious language, that the same terms substantially would probably suggest themselves to all. His work is made up of such sentences. In what then consists his right of property? Is each particular sentence a property? Or do they not become property until joined together?
But the subjects of books are various. Some are flights of imagination; some are records of facts. In one, history relates her sober details; in another, science demonstrates his abtruse propositions. In all these, intellectual labour is exerted; but is the fruit of that intellectual labour property in all cases alike? Are the meditations of the poet property in the same sense with the calculations of the mathematician; and has each an exclusive right to the results of his labour? Before you answer this in the affirmative, you should reflect that the processes of mathematical calculation are the same throughout the world, and that the end aimed at by them is also identical. A book of mathematics is a book of calculations, conducted according to certain invariable and universally acknowledged principles; and though to compose it requires perhaps intense intellectual exertion, yet it calls for no original ideas or discoveries. Two mathematicians, one in France, for instance, and the other here, may easily be supposed toiling through the same processes at the same moment, and accomplish results exactly the same. Which has the exclusive right of property in his production? Which shall be permitted to publish his book, and proclaim to the other, and to all the world, I alone am invested with the rights of authorship?
Many of the most interesting and valuable works are mere records of discoveries in experimental science. But two philosophers may at the same time be engaged, in different parts of the world, in the same series of experiments, and may both hit on the same result. The discovery, as mere property, is only valuable perhaps through the medium of publication; yet shall the right of publishing be restricted to one, and if the other presume to tell the same philosophical facts, shall he be considered a species of felon? The law of patents rests confessedly on the same principle as the law of copyright. They both pretend to have natural and obvious justice for their foundation. The inventor of a new application of the principles of mechanics claims a right of exclusive property in the fruit of his intellectual labour, not less than the writer of a poem or a play. Yet some of the most valuable inventions which have ever been given to mankind have been produced simultaneously, by different minds, in different parts of the world. It is uncertain to this day to whom men are indebted for the application of the magnetic needle to navigation; and the honour of the discovery of the art of printing is yet a matter of dispute. While Franklin was pursuing his electrical experiments in Philadelphia, the philosophers of Paris were engaged in similar investigations, and with similar success. Rittenhouse, when he planned his complicated and ingenious Orrery, knew not that such an instrument had already been completed, which was destined to perpetuate the name of its inventor.1 Newton and Leibnitz each claimed the exclusive honour of their method of fluxions; and many more instances might be adduced, if we had leisure to pursue the subject, of such jarring and incompatible claims to exclusive property in the fruits of intellectual labour. The cases we have stated will sufficiently show that there cannot be, in the nature of things, a positive and absolute right of exclusive property in processes of thought, which different minds may be engaged in at the same moment of time. Two authors, without concert or intercommunion, may describe the same incidents, in language so nearly identical that the two books, for all purposes of sale, shall be the same. Yet one writer may make a free gift of his production to the public, may throw it open in common; and then what becomes of the other’s right of property?
The remarks which we have thus far offered go merely to assail the position of the natural right of property in ideas, as existing anterior to law, or independent of it. It is essential to the establishment of such a natural right, that it should be shown to be distinct property, which absolutely and wholly belongs to some one individual, and can belong to no other than he. The labour of your hands belongs to you; for no other individual in the world performed that labour, or achieved its particular results. But the labour of your mind can produce only ideas, which may be common to many minds, and which are not susceptible of being distinguished by marks of peculiar property. Another person falling, under similar circumstances, into the same mood of cogitation, may produce ideas—not merely similar—not another set of perfect resemblance to the first—not a copy—but identically the same. There is an inherent difficulty in fixing limits to incorporeality. The regions of thought, like those of the air, are the common property of all earth’s creatures.
We do not offer the crude observations which we have here made as a full answer to our correspondent’s argument; for we mean to reserve the question for a more deliberate and careful discussion in another number. But we merely put them forth as some of the reasons which lead us to deny that the author and inventor have any property in the fruits of their intellectual labour, beyond that degree in which it is incorporated with their physical labour.
RIGHT OF PROPERTY IN THE FRUITS OF INTELLECTUAL LABOUR
February 25, 1837.
We have provoked such odds against us, in the contest on the subject of the rights of property in intellectual productions, that we do not know but that it would be “the better part of valour” to quit the field incontinently. To emulate the conduct of the bold knight whose determined heroism is recorded in Chevy Chase, and who, when his legs were off, “still fought upon his stumps,” might seem, in such a dispute as we engaged in, rather censurable obstinacy, than praiseworthy courage. Or if it provoked a smile, it would probably be one, not of approbation, but of that kind which we bestow on the logical prowess of Goldsmith’s Schoolmaster, who could argue after he was vanquished,1 as Bombastes Furioso continues to fight after he is killed.2
There is one motive, however, which might not be without some weight with us to persist in the controversy, even after being convinced we had espoused the wrong side. If our doing so would continue to draw such writers into the field as we have heretofore had to contend with, we should not be without excuse; as their forcible reasoning and perspicuous style would far more than counterpoise the influence of our erroneous opinions, exert what ingenuity we might to establish them.
But we choose to deal ingenuously with our readers. We took up arms to battle for the truth, and shall lay them down the moment we find we have inadvertently engaged on the side of her adversaries. That we are shaken in the opinions we have heretofore expressed, we freely admit. The idiosyncracies of style, to use the term aptly employed in the eloquent communication annexed, are marked with such distinctness, that a bare phrase of three or four words, from a writer of admitted genius, is often so characteristic and peculiar, as to indicate its source at once, even to those who have no recollection of its origin, but who judge of it as a connoisseur does of a painting.
How far this peculiar mode of expression can be considered property on the principles of natural justice, is the question in dispute. We are not entirely convinced that we have taken wrong ground on this subject; yet we by no means feel so confident of the correctness of our opinions as we did when we put them forth. One thing seems to us, and has all along seemed, very clear: if the author has a natural right of property in the products of his intellectual labour, it ought to be acknowledged as extensively as the capitalist’s right of property in his money, or the merchant’s in his goods. It is a common law right, not a right by statute, maugre all decisions to the contrary. If, on the other hand, his right is derived from a law founded on views of expediency, instead of the principles of natural justice, we revert to our first position, that the greatest good of the greatest number would be more effectually promoted by the total abrogation of copyright property.
Let the claim of natural right be established, and we should be among the last to invade it; but concede that the question rests on any other basis, and we think we should have no great difficulty in showing that the general welfare would be advanced by abolishing the principle of exclusive property in written compositions, as it is never asserted in those which are merely spoken.
The text of this book was set in a type called Caslon 540. It is a modern design based on the famous fonts that William Caslon cut more than two hundred years ago. William Caslon, born in 1692 at Cradley in Worcestershire, turned to letter-founding after being apprenticed to an engraver of ornamental gun locks and barrels. There was nothing startlingly new about his designs; he took as his models the best Dutch types of the seventeenth century, particularly those of Van Dijck. The fact that he started a great era of British typography was due less to his originality than to his competence and ability at engraving and casting types at a time when letter-founding in England was at a very low ebb.