Copyhype

Continuing from Tuesday’s post, below are some more common myths about copyright from the Founding period of the US. There’s a good deal of overlap between many of these, so I will try to limit discussion here to new points to avoid repetition.

Copyright was originally created as a utilitarian law. ¹Berin Szoka, Scott Cleland Abandons his Regulatory Skepticism, Misunderstands the Copyright Clause, Technology Liberation Front (Nov. 3, 2011): “if the the Copyright clause is ‘clearly’ anything, it is utilitarian”; Christopher Sprigman, Copyright and the Rule of Reason, 7 Journal on Telecommunications and High Technology Law 317 (2009): “Copyright is sometimes justified as the appropriate reward for an author’s creative labor. And copyright is also sometimes justified as a way that we acknowledge an author’s strong interest in a creation that reflects and embodies his or her personality. But the dominant justification for copyright, at least in the United States, is explicitly utilitarian. Congress’s power to create patent and copyright laws is provided for explicitly in our Constitution, and—uniquely among the provisions describing Congress’s powers—the grant contains a purpose clause that sets out an explicitly utilitarian rationale. Congress is given the power to pass patent and copyright laws ‘[t]o promote the Progress of Science and useful Arts.'”

It is generally stated that copyright in the US (and other Anglo countries) is based on utilitarianism while copyright in Continental countries is based on natural or moral rights. ²See Intellectual Property (Stanford Encyclopedia of Philosophy) and Philosophy of copyright (Wikipedia). But this claim goes further: the utilitarian justification for US copyright is explicitly contained in the text of the Copyright Clause, and natural rights or property talk has no place in the copyright policy arena. In his book Moral Panics and the Copyright Wars, William Patry has even gone as far as to say that the US Supreme Court actually declared the Lockean justification for copyright unconstitutional. ³Patry, Moral Panics, pg. 66 (2008). How the Supreme Court can declare a philosophical rationale for a law unconstitutional is beyond me.

In my earlier post, I showed that there is plenty of evidence that the Founders thought of copyright in a natural rights context or as property. Additional evidence reinforces that point.

The state statutes and the first federal Copyright Act were heavily influenced by England’s Statute of Anne, both in substance and, in many cases, the actual language. ⁴See Oren 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 (2010). But it’s the differences between the first Copyright Act and these earlier statutes that demonstrate the Founders were thinking of copyright as a natural right at least as much as a utilitarian law.

Most notably, the Statute of Anne provided that third parties could bring a complaint if the price of any book was “High and Unreasonable”, giving the government the power to set a reasonable compulsory price. Five of the States that passed copyright statutes — Connecticut, Georgia, New York, North Carolina, and South Carolina — adopted similar provisions. These provisions are decidedly utilitarian; Georgia, for example, stated in the beginning of its Act that “the principles of natural equity and justice, require that every author should be secured in receiving the profits that may arise from the sale of his works,” but later noted that “it is equally necessary for the encouragement of learning that the inhabitants of this State be furnished useful books &c. at reasonable prices.”

The Copyright Act of 1790, however, did not include any such provision.

The utilitarian justification for copyright was present at this time, but the evidence doesn’t suggest that it was anywhere near the “clear” or “explicit” basis for early US copyright law that some suggest. ⁵See also Patrick Cronin, The Historical Origins of the Conflict Between Copyright and the First Amendment, 35 Columbia Journal of Law and the Arts 221, 225-26 (2012), “The Copyright Clause did not solely embody one particular theory explaining why authors should be entitled to exclusive rights to their writings… the founding generation was ambivalent about what theory supported copyright”; Richard A. Spinello and Maria Bottis, A Defense of Intellectual Property Rights, pg. 39 (2009): “The currently dominant American intellectual property doctrine, that copyright and right to an invention are necessary because they function as a mechanism supplying the necessary incentives to authors and inventors so that they produce, is not easy to detect as such in the major accepted historical sources of common and civil copyright law”; Jane Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 Tulane Law Review 991 (1990).

The Founders were suspicious of monopolies, including copyright. ⁶Lewis Hyde, How to Reform Copyright (Oct. 9, 2011): “The founding fathers considered copyright a ‘monopoly privilege’ and, as Madison later wrote, ‘Monopolies … ought to be granted with caution … .'”; Stephen Kinsella, How to Slow Economic Progress (June 1, 2011): “the American founders… were nervous about monopoly privilege.”; Lydia Pallas Loren, The Purpose of Copyright (2000): “The framers of the United States Constitution, suspicious of all monopolies to begin with, knew the history of the copyright as a tool of censorship and press control.”

Schwartz and Treanor do an excellent job of examining this claim in their paper Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property. They note that this broad suspicion of monopolies applied to the Founders fails under scrutiny. Those who make this claim focus on only “one group of Founders to the exclusion of other groups,” leading to an inaccurate historical picture that presents the debate over monopolies “as one pitting Thomas Jefferson and George Mason (both deeply opposed to the creation of government monopolies) against James Madison (with his reluctant acceptance of a very limited class of monopolies)”, wholly ignoring those Founders who would become Federalists and others who “believed monopolies could advance the commonweal.”

Schwartz and Treanor conclude:

This is a one-sided history; it leaves out the other political party, with its very different view about monopolies. It would be like a study of modern American views on tax policy or abortion that saw the gamut of differences as running from Trent Lott to George W. Bush and ending there.

What makes this reliance on those Founders who expressed opposition to monopolies especially shaky is that, in the end, the Constitution and Bill of Rights did not expressly prohibit monopolies. This, despite Jefferson privately telling Madison such a provision should be added to the Constitution, ⁷Thomas Jefferson, letter to James Madison (Aug. 28, 1789): “For instance, the following alterations and additions would have pleased me… Article 9. Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding ——— years, but for no longer term, and no other purpose.” Mason refusing to support ratification because Congress was not restricted from granting them, ⁸Objections of the Hon. George Mason, one of the Delegates from Virginia in the Late Continental Convention, to the Proposed Federal Constitution; Assigned as His Reasons for not Signing the Same (Oct. 1787): “Under their own construction of the general clause at the end of the enumerated powers, the Congress may grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and extend their power as far as they shall think proper.” and four states proposing Amendments to that effect during ratification. ⁹Massachusetts (February 6, 1788), New Hampshire (June 21, 1788), and North Carolina (November 21, 1789) sought amendments that Congress “erect no Company of Merchants with exclusive advantages of commerce.” New York (June 17, 1788) passed a resolution when it ratified stating “that nothing in the said Constitution contained shall be construed to authorize Congress to grant monopolies, or erect any company with exclusive advantages of commerce.”

And even accepting a certain level of aversion to monopolies, there appears to be a well-established distinction between general commercial monopolies — exclusive government grants to engage in existing trades and enterprises — and the “monopolies” recognized for inventors and authors.

Nearly a century and a half before the Bill of Rights, in 1641, the Massachusetts General Court established the Body of Liberties, “the first legal code established by European colonists in New England.” Among its provisions: “No monopolies shall be granted or allowed amongst us, but of such new Inventions that are profitable to the Countrie, and that for a short time.” A similar law was passed by Connecticut in 1672: “That there shall be no Monopolies granted or allowed amongst us, but of such new Inventions as shall be judged profitable for the Country, and that for such time as the General Court shall judge meet.”

At least one supporter of general monopolies sought to persuade of their benefit by making a favorable comparison to copyrights and patents. American pastor Nicholas Collin, writing in response to those amendments offered by the four states to limit monopolies, noted that though they are “in general pernicious”, “exceptions must be admitted.” ¹⁰Nicholas Collin, Remarks on the amendments to the federal constitution, number X (Philadelphia, Nov. 1, 1788). Collin spoke of the “risk and expense” that a company of merchants undertook to establish a trade in new and remote markets, and the benefit to the public that would result from an exclusive grant to such merchants. “A temporary monopoly of this kind,” said Collin, “may be vindicated upon the same principles upon which a like monopoly of a new machine is granted to its inventor, and that of a new book to its author.”

Perhaps the strongest distinction was made by future Supreme Court Justice James Iredell, who, writing as “Marcus,” printed his pamphlet on “Answers to Mr. Mason’s Objections” in January, 1788. ¹¹Reprinted by Griffith John McRee in Life and correspondence of James Iredell, vol. 2, pg. 186 (1863). Iredell responded to Mason’s claim that the Necessary and Proper Clause allowed Congress to grant trade monopolies, stating that no language in the Constitution could allow such power. Iredell saved his sharpest rebuke for this footnote:

One of the powers given to Congress is, “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” I am convinced Mr. Mason did not mean to refer to this clause, he is a gentleman of too much taste and knowledge himself to wish to have our government established upon such principles of barbarism as to be able to afford no encouragement to genius.

References[+]

References

↑1	Berin Szoka, Scott Cleland Abandons his Regulatory Skepticism, Misunderstands the Copyright Clause, Technology Liberation Front (Nov. 3, 2011): “if the the Copyright clause is ‘clearly’ anything, it is utilitarian”; Christopher Sprigman, Copyright and the Rule of Reason, 7 Journal on Telecommunications and High Technology Law 317 (2009): “Copyright is sometimes justified as the appropriate reward for an author’s creative labor. And copyright is also sometimes justified as a way that we acknowledge an author’s strong interest in a creation that reflects and embodies his or her personality. But the dominant justification for copyright, at least in the United States, is explicitly utilitarian. Congress’s power to create patent and copyright laws is provided for explicitly in our Constitution, and—uniquely among the provisions describing Congress’s powers—the grant contains a purpose clause that sets out an explicitly utilitarian rationale. Congress is given the power to pass patent and copyright laws ‘[t]o promote the Progress of Science and useful Arts.'”
↑2	See Intellectual Property (Stanford Encyclopedia of Philosophy) and Philosophy of copyright (Wikipedia).
↑3	Patry, Moral Panics, pg. 66 (2008). How the Supreme Court can declare a philosophical rationale for a law unconstitutional is beyond me.
↑4	See Oren 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 (2010).
↑5	See also Patrick Cronin, The Historical Origins of the Conflict Between Copyright and the First Amendment, 35 Columbia Journal of Law and the Arts 221, 225-26 (2012), “The Copyright Clause did not solely embody one particular theory explaining why authors should be entitled to exclusive rights to their writings… the founding generation was ambivalent about what theory supported copyright”; Richard A. Spinello and Maria Bottis, A Defense of Intellectual Property Rights, pg. 39 (2009): “The currently dominant American intellectual property doctrine, that copyright and right to an invention are necessary because they function as a mechanism supplying the necessary incentives to authors and inventors so that they produce, is not easy to detect as such in the major accepted historical sources of common and civil copyright law”; Jane Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 Tulane Law Review 991 (1990).
↑6	Lewis Hyde, How to Reform Copyright (Oct. 9, 2011): “The founding fathers considered copyright a ‘monopoly privilege’ and, as Madison later wrote, ‘Monopolies … ought to be granted with caution … .'”; Stephen Kinsella, How to Slow Economic Progress (June 1, 2011): “the American founders… were nervous about monopoly privilege.”; Lydia Pallas Loren, The Purpose of Copyright (2000): “The framers of the United States Constitution, suspicious of all monopolies to begin with, knew the history of the copyright as a tool of censorship and press control.”
↑7	Thomas Jefferson, letter to James Madison (Aug. 28, 1789): “For instance, the following alterations and additions would have pleased me… Article 9. Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding ——— years, but for no longer term, and no other purpose.”
↑8	Objections of the Hon. George Mason, one of the Delegates from Virginia in the Late Continental Convention, to the Proposed Federal Constitution; Assigned as His Reasons for not Signing the Same (Oct. 1787): “Under their own construction of the general clause at the end of the enumerated powers, the Congress may grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and extend their power as far as they shall think proper.”
↑9	Massachusetts (February 6, 1788), New Hampshire (June 21, 1788), and North Carolina (November 21, 1789) sought amendments that Congress “erect no Company of Merchants with exclusive advantages of commerce.” New York (June 17, 1788) passed a resolution when it ratified stating “that nothing in the said Constitution contained shall be construed to authorize Congress to grant monopolies, or erect any company with exclusive advantages of commerce.”
↑10	Nicholas Collin, Remarks on the amendments to the federal constitution, number X (Philadelphia, Nov. 1, 1788).
↑11	Reprinted by Griffith John McRee in Life and correspondence of James Iredell, vol. 2, pg. 186 (1863).