Chapter 2: Thomas Jefferson Writes a Letter_The Public Domain: Enclosing the Commons of the Mind

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 assessor, 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.

Jefferson's writing is, as usual, apparently effortless. Some

find his penmanship 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.

I love libraries. I love the mushroom smell of gently rotting

paper, the flaky crackle of manuscripts, 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.)

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 massive 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.

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.

Patents then, as now, were only supposed to be given for

inventions that were novel, nonobvious, 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 scholarship 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 compass was invented for

navigating the sea; another could not have a patent right for

using it to survey land."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.

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 assume that the framers of the

Constitution were property absolutists, Jefferson argues that

"stable ownership" 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.

[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 ownership 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

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 ownership 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.

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.

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 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 possess the less, because every

other possess 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.

That ideas should freely spread from one to another over the

globe, for the moral and mutual instruction of man, and

improvement of his condition, seems to have been peculiarly and

benevolently designed by nature, when she made them, like fire,

expansible over all space, without lessening their density in

any point, and like the air in which we breathe, move, and have

our physical being, incapable of confinement or exclusive

appropriation. Inventions then cannot, in nature, be a subject

of property.10

Those who quote the passage sometimes stop here, which is a

shame, because it leaves the impression that Jefferson was

unequivocally against intellectual property rights. But that

would be a considerable overstatement. When he says that

inventions can never be the subject of property, he means a

permanent and exclusive property right which, as a matter of

natural right, no just government could abridge. However,

inventions could be covered by temporary state-created

monopolies instituted for the common good. In the lines

immediately following the popularly quoted excerpt, Jefferson

goes on:

Society may give an exclusive right to the profits arising

from [inventions], as an encouragement to men to pursue ideas

which may produce utility, but this may or may not be done,

according to the will and convenience of the society, without

claim or complaint from any body. Accordingly, it is a fact, as

far as I am informed, that England was, until we copied her, the

only country on earth which ever, by a general law, gave a legal

right to the exclusive use of an idea. In some other countries

it is sometimes done, in a great case, and by a special and

personal act, but, generally speaking, other nations have

thought that these monopolies produce more embarrassment than

advantage to society; and it may be observed that the nations

which refuse monopolies of invention, are as fruitful as England

in new and useful devices.11

Jefferson's message was a skeptical recognition that

intellectual property rights might be necessary, a careful

explanation that they should not be treated as natural rights,

and a warning of the monopolistic dangers that they pose. He

immediately goes on to say something else, something that is, if

anything, more true in the world of patents on Internet business

methods and gene sequences than it was in the world of

"conveyers and Hopper-boys."

Considering the exclusive right to invention as given not of

natural right, but for the benefit of society, I know well the

difficulty of drawing a line between the things which are worth

to the public the embarrassment of an exclusive patent, and

those which are not.12

So Jefferson gives us a classic set of cautions, cautions that

we should be required to repeat, as police officers repeat the

Miranda Warning to a suspect. In this case, they should be

repeated before we rush off into the world of intellectual

property policy rather than before we talk to the police without

our lawyers present.

THE JEFFERSON WARNING

Like the Miranda Warning, the Jefferson Warning has a number of

important parts.

* First, the stuff we cover with intellectual property rights

has certain vital differences from the stuff we cover with

tangible property rights. Partly because of those differences,

Jefferson, like most of his successors in the United States,

does not see intellectual property as a claim of natural right

based on expended labor. Instead it is a temporary state-created

monopoly given to encourage further innovation.

* Second, there is no "entitlement" to have an intellectual

property right. Such rights may or may not be given as a matter

of social "will and convenience" without "claim or complaint

from any body."

* Third, intellectual property rights are not and should not be

permanent; in fact they should be tightly limited in time and

should not last a day longer than necessary to encourage the

innovation in the first place.

* Fourth, a linked point, they have considerable monopolistic

dangers--they may well produce more "embarrassment than

advantage." In fact, since intellectual property rights

potentially restrain the benevolent tendency of "ideas . . .

[to] freely spread from one to another over the globe, for the

moral and mutual instruction of man," they may in some cases

actually hinder rather than encourage innovation.

* Fifth, deciding whether to have an intellectual property

system is only the first choice in a long series.13 Even if one

believes that intellectual property is a good idea, which I

firmly do, one will still have the hard job of saying which

types of innovation or information are "worth to the public the

embarrassment" of an exclusive right, and of drawing the limits

of that right. This line-drawing task turns out to be very

difficult. Without the cautions that Jefferson gave us it is

impossible to do it well.

Jefferson's message was famously echoed and amplified thirty

years later in Britain by Thomas Babington Macaulay.14

Macaulay's speeches to the House of Commons in 1841 on the

subject of copyright term extension still express better than

anything else the position that intellectual property rights are

necessary evils which must be carefully circumscribed by law. In

order for the supply of valuable books to be maintained, authors

"must be remunerated for their literary labour. And there are

only two ways in which they can be remunerated. One of those

ways is patronage; the other is copyright." Patronage is

rejected out of hand. "I can conceive no system more fatal to

the integrity and independence of literary men than one under

which they should be taught to look for their daily bread to the

favour of ministers and nobles."15

We have, then, only one resource left. We must betake

ourselves to copyright, be the inconveniences of copyright what

they may. Those inconveniences, in truth, are neither few nor

small. Copyright is monopoly, and produces all the effects which

the general voice of mankind attributes to monopoly. . . . I

believe, Sir, that I may safely take it for granted that the

effect of monopoly generally is to make articles scarce, to make

them dear, and to make them bad. And I may with equal safety

challenge my honorable friend to find out any distinction

between copyright and other privileges of the same kind; any

reason why a monopoly of books should produce an effect directly

the reverse of that which was produced by the East India

Company's monopoly of tea, or by Lord Essex's monopoly of sweet

wines. Thus, then, stands the case. It is good that authors

should be remunerated; and the least exceptionable way of

remunerating them is by a monopoly. Yet monopoly is an evil. For

the sake of the good we must submit to the evil; but the evil

ought not to last a day longer than is necessary for the purpose

of securing the good.16

Notice that it is the monopolistic quality of intellectual

property that really disturbs Macaulay. His was a generation of

thinkers for whom the negative effect of monopolies of any kind

(and state-granted monopolies in particular) was axiomatic. He

becomes almost contemptuous when one of the supporters of

monopoly makes things expensive. Macaulay agrees, tongue in

cheek. "It is a theory in the same sense in which it is a

theory, that day and night follow each other, that lead is

heavier than water, that bread nourishes, that arsenic poisons,

that alcohol intoxicates."17

These words from Jefferson and Macaulay encapsulate an

eighteenth- and nineteenth-century free-trade skepticism about

intellectual property, a skepticism that is widely, but not

universally, believed to have played an important role in

shaping the history of intellectual property in both the United

States and the United Kingdom. Certainly the U.S. Supreme Court

has offered support for that position,18 and, with one

significant recent exception,19 historians of intellectual

property have agreed.20 Jefferson himself had believed that the

Constitution should have definite limits on both the term and

the scope of intellectual property rights.21 James Madison

stressed the costs of any intellectual property right and the

need to limit its term and to allow the government to end the

monopoly by compulsory purchase if necessary.22 Adam Smith

expressed similar views. Monopolies that carry on long after

they were needed to encourage some socially beneficial activity,

he said, tax every other citizen "very absurdly in two different

ways: first, by the high price of goods, which, in the case of a

free trade, they could buy much cheaper; and, secondly, by their

total exclusion from a branch of business which it might be both

convenient and profitable for many of them to carry on."23

It is important to note, though, that the eighteenth- and

nineteenth-century writers I have quoted were not against

intellectual property. All of them--Jefferson, Madison, Smith,

and Macaulay--could see good reason why intellectual property

rights should be granted. They simply insisted on weighing the

costs and benefits of a new right, each expansion of scope, each

lengthening of the copyright term. Here is Macaulay again,

waxing eloquently sarcastic about the costs and benefits of

extending the copyright term so that it would last many years

after the author's death:

I will take an example. Dr. Johnson died fifty-six years

ago. If the law were what my honourable and learned friend

wishes to make it, somebody would now have the monopoly of Dr.

Johnson's works. Who that somebody would be it is impossible to

say; but we may venture to guess. I guess, then, that it would

have been some bookseller, who was the assign of another

bookseller, who was the grandson of a third bookseller, who had

bought the copyright from Black Frank, the Doctor's servant and

residuary legatee, in 1785 or 1786. Now, would the knowledge

that this copyright would exist in 1841 have been a source of

gratification to Johnson? Would it have stimulated his

exertions? Would it have once drawn him out of his bed before

noon? Would it have once cheered him under a fit of the spleen?

Would it have induced him to give us one more allegory, one more

life of a poet, one more imitation of Juvenal? I firmly believe

not. I firmly believe that a hundred years ago, when he was

writing our debates for the Gentleman's Magazine, he would very

much rather have had twopence to buy a plate of shin of beef at

a cook's shop underground.24

Again, I am struck by how seamlessly Macaulay coupled beautiful,

evocative writing and careful, analytic argument. Admittedly, he

was remarkable even in his own time, but it is hard to imagine a

contemporary speechwriter, let alone a politician, coming up

with Dr. Johnson "cheered . . . under a fit of the spleen" or

buying a "plate of shin of beef at a cook's shop underground."

Almost as hard as it is to imagine any of them engaging in

Jefferson's correspondence about mammoth bones, orthography, and

the practicalities of the nautical torpedo. But I digress.

Macaulay is not against using a lengthened copyright term to

give an extra reward to writers, even if this would dramatically

raise the price of books. What he objects to is dramatically

raising the price of books written by long-dead authors in a way

that benefits the authors hardly at all.

Considered as a reward to him, the difference between a

twenty years' and a sixty years' term of posthumous copyright

would have been nothing or next to nothing. But is the

difference nothing to us? I can buy Rasselas for sixpence; I

might have had to give five shillings for it. I can buy the

Dictionary, the entire genuine Dictionary, for two guineas,

perhaps for less; I might have had to give five or six guineas

for it. Do I grudge this to a man like Dr. Johnson? Not at all.

Show me that the prospect of this boon roused him to any

vigorous effort, or sustained his spirits under depressing

circumstances, and I am quite willing to pay the price of such

an object, heavy as that price is. But what I do complain of is

that my circumstances are to be worse, and Johnson's none the

better; that I am to give five pounds for what to him was not

worth a farthing.25

Though Macaulay won the debate over copyright term extension, it

is worth noting here that his opponents triumphed in the end. As

I pointed out in the last chapter, the copyright term in most of

Europe and in the United States now lasts for the life of the

author and an additional seventy years afterward, ten years more

than the proposal which made Macaulay so indignant. In the

United States, corporate owners of "works-for-hire" get ninety-

five years.26 The Supreme Court recently heard a constitutional

challenge to the law which expanded the term of copyrights by

twenty years to reach this remarkable length.27 (Full

disclosure: I helped prepare an amicus brief in that case.)28

This law, the Sonny Bono Copyright Term Extension Act, also

extended existing copyrights over works which had already been

created.29 As I observed earlier, this is particularly

remarkable if the idea is to give an incentive to create.

Obviously the authors of existing works were given sufficient

incentive to create; we know that because they did. Why do we

need to give the people who now hold their copyrights another

twenty years of monopoly? This is all cost and no benefit.

Macaulay would have been furious.

When the Supreme Court heard the case, it was presented with a

remarkable friend-of-the-court brief from seventeen economists,

several of them Nobel laureates.30 The economists made exactly

Macaulay's argument, though in less graceful language. They

pointed out that copyright extension imposed enormous costs on

the public and yet conveyed tiny advantages, if any, to the

creator. Such an extension, particularly over works that had

already been written, hardly fit the limits of Congress's power

under the Constitution "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."31 Macaulay doubted that these enormously long

terms would encourage the living. Surely they would do little to

encourage the dead, while imposing considerable costs of access

on the living? Thus they could hardly be said to "promote the

progress" of knowledge as the Constitution requires. The Court

was unmoved by this and other arguments. It upheld the law. I

will return to its decision at the end of the book.

The intellectual property skeptics had other concerns. Macaulay

was particularly worried about the power that went with a

transferable and inheritable monopoly. It is not only that the

effect of monopoly is "to make articles scarce, to make them

dear, and to make them bad." Macaulay also pointed out that

those who controlled the monopoly, particularly after the death

of the original author, might be given too great a control over

our collective culture. Censorious heirs or purchasers of the

they disagreed with its morals.32 We might lose the works of

Fielding or Gibbon, because a legatee found them distasteful and

used the power of the copyright to suppress them. This is no

mere fantasy, Macaulay tells us. After praising the novels of

Samuel Richardson in terms that, to modern eyes, seem a little

fervid ("No writings, those of Shakespeare excepted, show more

profound knowledge of the human heart"), Macaulay recounts the

story of Richardson's grandson, "a clergyman in the city of

London." Though a "most upright and excellent man," the grandson

"had conceived a strong prejudice against works of fiction,"

"thought all novel-reading not only frivolous but sinful," and

"had never thought it right to read one of his grandfather's

books."33 Extended copyright terms might hand over the copyright

to such a man. The public would lose, not because they had to

pay exorbitant prices that denied some access to the work, but

because the work would be altogether suppressed. Richardson's

novels--Pamela, Clarissa Harlowe, and so on--are now the preserve

of the classroom rather than the drawing room, so this might not

seem like much of a loss. But Macaulay's next example is not so

easy to dismiss.

One of the most instructive, interesting, and delightful

books in our language is Boswell's Life of Johnson. Now it is

well known that Boswell's eldest son considered this book,

considered the whole relation of Boswell to Johnson, as a blot

in the escutcheon of the family. He thought, not perhaps

altogether without reason, that his father had exhibited himself

in a ludicrous and degrading light. And thus he became so sore

and irritable that at last he could not bear to hear the Life of

Johnson mentioned. Suppose that the law had been what my

honourable and learned friend wishes to make it. Suppose that

the copyright of Boswell's Life of Johnson had belonged, as it

well might, during sixty years, to Boswell's eldest son. What

would have been the consequence? An unadulterated copy of the

finest biographical work in the world would have been as scarce

as the first edition of Camden's Britannia.34

From more recent examples we can see that outright suppression

is not the only thing to fear. The authors' heirs, or the

corporations which have purchased their rights, may keep

policing the boundaries of the work long after the original

author is dead. In 2001, Alice Randall published The Wind Done

Gone. As its title might indicate, The Wind Done Gone was a 220-

page "critique of and reaction to" the world of Gone With the

Wind by Margaret Mitchell.35 Most crucially, perhaps, it was a

version of Gone With the Wind told from the slaves' point of

view. Suddenly the actions of Rhett ("R"), Scarlett ("Other"),

and an obviously gay Ashley ("Dreamy Gentleman") come into new

perspective through the eyes of Scarlett's "mulatto" half-

sister. Mitchell's estate wanted to prevent publication of the

book. At first they were successful.36 As Yochai Benkler puts

it,

Alice Randall, an African American woman, was ordered by a

government official not to publish her criticism of the

romanticization of the Old South, at least not in the words she wanted

to use. The official was not one of the many in Congress and the

Administration who share the romantic view of the Confederacy. It was

a federal judge in Atlanta who told Randall that she could not write

her critique in the words she wanted to use--a judge enforcing

"They killed Miss Scarlett!" the astonished trial judge said

after reading Randall's book. My colleague Jennifer Jenkins, one

of the lawyers in the case, recounts that the judge saw the case

in relentlessly physical terms, seeing the parody as a

"bulldozer" and Gone With the Wind as a walled country estate

into which the bulldozer had violently trespassed. He was

consequently unimpressed with the claim that this "bulldozer"

was protected by the First Amendment. Eventually, the court of

appeals overturned the district court's judgment.38 Fifty-two

years after Margaret Mitchell's death, it was a hotly debated

point how much leeway copyright gave to others to comment upon,

critique, embellish upon, and parody the cultural icon she had

conjured up.

A NATURAL RIGHT?

To some people, my argument so far--and Jefferson's and

Macaulay's--will seem to miss the point. They see intellectual

property rights not as an incentive, a method of encouraging the

production and distribution of innovation, but as a natural or

moral right. My book is mine because I wrote it, not because

society or the law gives me some period of exclusivity over

allowing the copying of its contents. My invention is mine

because it came from my brain, not because the law declares a

twenty-year monopoly over its production or distribution. My

logo is mine because I worked hard on it, not because the state

grants me a trademark in order to lower search costs and prevent

consumer confusion. One answer is simply to say "In the United

States, the framers of the Constitution, the legislature, and

the courts have chosen to arrange things otherwise. In

deviations--they have embraced the utilitarian view instead."

Broadly speaking, that answer is correct.39 It also holds, to a

lesser extent, in Britain. Even in the droits d'auteur

countries, which have a markedly different copyright law regime,

it largely holds for their patent and trademark law systems, and

utilitarian strands suffuse even "the sacred rights of authors."

So, on a national level, we have rejected or dramatically

limited the natural rights view, and on an international level,

we have rejected it in "industrial property"--patent and

trademark--and modified it in copyright.

I think this answer is correct and important, but we have an

obligation to go further. Partly that is because intuitions

about ownership coming naturally with labor or discovery

continue to influence the law. Partly it is because those moral

intuitions are important and appealing. Partly it is because we

might wish to modify or criticize our current system. Using the

views of the framers, or current law, to preempt discussion is

unsatisfactory--even though those views are of particular

importance for the legal policy decisions we face in the short

run, the issues on which much of my argument is concentrated.

There are varying stated grounds for natural or moral rights in

intellectual creations. Some people may think the book is mine

because I worked on it--a Lockean conception where I mix my sweat

with these words and receive a property right in the process.

For all its attractions, there are considerable difficulties

with such a view. Even within the world of tangible property,

Locke's theory is more complicated than a simple equation of

labor with property right. Jefferson's account of property is

actually closer to Locke's than many would realize. When

Jefferson points out the difficulty in justifying a natural

right even in an acre of land, let alone a book, his premises

are not radically different from Locke's. The same is true when

Jefferson says that "[s]table ownership is the gift of social

law, and is given late in the progress of society." Even if

natural right does create the ground for the property claim, it

is "social law" that shapes its contours and guarantees its

stability. Jefferson, of course, thought that was particularly

true for intellectual property rights. In that context, he felt

the natural rights argument was much weaker and the need for

socially defined purposive contours and limitations stronger.

Locke's own views on what we would think of as copyright are

hard to determine. We do know that he had a strong antipathy to

monopolies--particularly those affecting expression. He believed,

for example, that giving publishers monopolies over great public

domain books caused a disastrous fall in quality. Instead, he

argued, such books should be open for all to compete to produce

the best edition. Of course, he was writing in the context of

monopolistic printing privileges--to which he was strongly

opposed--rather than of individual authorial rights. Yet he went

further and suggested that even for contemporary works, after a

particular time in print--say fifty years--books could be printed

by anyone.

I demand whether, if another act for printing should be

made, it be not reasonable that nobody should have any peculiar

right in any book which has been in print fifty years, but any

one as well as another might have liberty to print it: for by

such titles as these, which lie dormant, and hinder others, many

good books come quite to be lost.40

This sounds like a strongly utilitarian argument, rather than

one based on labor and natural right. Of course, we are not

bound by what Locke or Jefferson thought. Still it is striking

to see the turn to a utilitarian conception from both of them.

The Lockean tradition is not the only one, of course. Others

believe that the property right stems from the unique

personality of each individual--the configurations of your

individual genius made manifest in the lines of your sonnet.

(Some limit the natural right to literary and expressive work;

can a mousetrap or a drug molecule express the riddle and wonder

of the human spirit?) Whatever their moral basis or their ambit,

the common ground between these positions is the belief in a

rationale for intellectual property rights beyond the

utilitarian concerns of Jefferson or Macaulay.

The norms embodied in the moral rights or natural rights

tradition are deeply attractive--at least to me. Many of us feel

a special connection to our expressive creations--even the humble

ones such as a term paper or a birthday poem. It is one of the

reasons that the central moral rights in the French droits

d'auteur, or author's rights, tradition resonate so strongly

with us. The entitlement of an author to be correctly

attributed, to have some control over the integrity of his work,

seems important regardless of its utilitarian functions.1

Yet even as we find this claim attractive, we become aware of

the need to find limiting principles to it. It gives us pause to

think that Margaret Mitchell or her heirs could forbid someone

parodying her work. Are there no free-speech limitations? When

other forms of authorship, such as computer programs, are

brought into copyright's domain, does the power of the moral

right decrease, while the need to limit its scope intensifies?

Then there is the question of length. How long is a natural

right in expression or invention supposed to last? It seems

absurd to imagine that Shakespeare's or Mozart's heirs, or those

who had bought their copyrights, would still be controlling the

performance, reproduction, and interpretation of their works

hundreds of years after their death. If the rights are truly

formed for a nonutilitarian purpose, after all, why should they

expire? The person who first acquires property rights in land by

work or conquest passes those rights down to heirs and buyers

with the chain of transmission reaching to the present day.

Should copyright follow suit? Even in France, the home of the

strongest form of the droits d'auteur and of the "moral rights"

tradition, the answer to this question was in the negative.

We owe a large part of the literary moral rights tradition to

the immediate aftermath of the French Revolution. In France

before the Revolution, as in England before the Statute of Anne,

the first true copyright legislation, the regulation of

publishing was through a set of "privileges" given to printers,

not rights given to authors. Publishers would have a guild-

enforced monopoly over certain titles. Their right was against

competing publishers printing the list of titles over which they

had the privilege. The Revolution abolished these privileges

and, at first, put nothing in their place. On the other hand, as

Carla Hesse's fascinating work reveals, there was intermittent

interference by the Prefecture of Police with those who copied

most flagrantly. One such publisher was sternly instructed by

the police in these terms:

[A]ccording to the Declaration of the Rights of Man, liberty

means only the freedom to do what does not harm others; and that

it harms others to appropriate the work of an author, because it

is an infringement of the sacred right of property; and that

such an enterprise, if it were to remain unpunished, would

deprive citizens of the instruction they await from celebrated

authors like M. Bernardin de St. Pierre, because no author would

want to consecrate his labors to the instruction of his age if

piracy were ever authorized.41

Note the interesting mixture of the language of the "sacred

rights of property" and the strong utilitarian justification

which cites effects on future literary production and the

"instruction" of citizens.

More expansive conceptions of the rights of authors and,

particularly, of publishers were also offered. Even before the

Revolution, publishers had been making the arguments that their

privileges were a form of property rights and had the very good

sense to hire the young Diderot to make those arguments. Hesse

quotes his words:

What form of wealth could belong to a man, if not a work of

the mind, . . . if not his own thoughts, . . . the most precious

part of himself, that will never perish, that will immortalize

him? What comparison could there be between a man, the very

substance of man, his soul, and a field, a tree, a vine, that

nature has offered in the beginning equally to all, and that an

individual has only appropriated through cultivating it?42

Diderot's theme is that authors' rights should actually be

stronger than other property rights for two reasons. First, they

relate to the very essence of the person, the most "precious

part of himself." Second, they are the only property rights over

something that has been added to the existing store of wealth

rather than taken from it. Authorial property, unlike property

in land, adds to the common store rather than detracting from

it. Locke believed that a just assertion of property rights must

leave "enough and as good" for others in the society. What could

better satisfy this condition than a property right over a novel

that did not exist before I wrote it? One hundred years later

Victor Hugo echoed the same thoughts in a speech to the Conseil

d'Etat and pointed out at the same time that literary property

rights could potentially "reconcile" troublesome authors to

society and state.

You feel the importance and necessity of defending property

today. Well, begin by recognising the first and most sacred of

all properties, the one which is neither a transmission nor an

acquisition but a creation, namely literary property . . .

reconcile the artists with society by means of property.43

Diderot wanted perpetual copyrights for authors and, agreeably

to his employers, a correspondingly perpetual printing

privilege. If the author's heirs could not be traced, the

But as Hesse points out, there was another view of literary

property--a much more skeptical one put forward best by

Condorcet. This view is also an influential part of the heritage

of the droits d'auteur, even if it is downplayed in its

contemporary rhetoric. Condorcet began by framing the question

of literary property as one of political liberty. "Does a man

have the right to forbid another man to write the same words

that he himself wrote first? That is the question to resolve."44

Like Jefferson, Condorcet is utterly unconvinced that property

rights in a book can be compared to those in a field or a piece

of furniture which can be occupied or used by only one man. The

type of property is "based on the nature of the thing." He

concluded, again in language strikingly similar to Jefferson's

and Macaulay's, that literary property was not a real property

right but a privilege, and one which must be assessed on a

utilitarian basis in terms of its contribution to

enlightenment.45

Any privilege therefore imposes a hindrance on freedom,

placing a restriction on the rights of other citizens; As such

it is not only harmful to the rights of others who want to copy,

but the rights of all those who want copies, and that which

increases the price is an injustice. Does the public interest

require that men make this sacrifice? That is the question that

must be considered; In other words, are [literary] privileges

needed and useful or harmful to the progress of enlightenment?46

Condorcet's conclusion was that they were not necessary and that

they could be harmful. "The books that most furthered the

progress of enlightenment, the Encyclopédie, the works of

Montesquieu, Voltaire, Rousseau, have not enjoyed the benefits

of a privilege." Instead he seemed to favor a combination of

"subscriptions" to authors with a trademark-like protection

which allowed an author to identify a particular edition of his

work as the genuine one, but which also allowed competing

editions to circulate freely. In such a market, he believed that

the price of the competing editions would fall to "natural"

levels--today we would call it marginal cost--but the original

author would still be able to charge a modest premium for the

edition he authorized or certified because readers would prefer

it as both more accurate and more authentic. One possible

analogy is to the history of the fashion industry in the United

States. It operates largely without design protection but relies

heavily on the trademarks accorded to favored designers and

brands. There are "knockoffs" of Armani or Balenciaga, but the

wealthy still pay an enormous premium for the real thing.

Condorcet also insisted that whatever protection was accorded to

literary works must not extend to the ideas within them. It is

the truths within books that make them "useful"--a word that does

not have the same luminance and importance for us today as it

did for the philosophers of the Enlightenment or the French

Revolution. He argued that any privilege given the author could

not extend to "preventing another man from exhibiting the same

truths, in perfectly the same order, from the same evidence" or

from extending those arguments and developing their

consequences. In a line that Hesse rightly highlights, he

declares that any privileges do not extend over facts or ideas.

"Ce n'est pas pour les choses, les idées; c'est pour les mots,

pour le nom de l'auteur."

In sum, Condorcet favors a limited privilege, circumscribed by

an inquiry into its effects in promoting progress and

enlightenment. The privilege only applies to expression and to

"the author's name," rather than to facts and ideas. This is

very much within the tradition of Jefferson and Macaulay.

Hesse argues, correctly I think, that two warring ideas

shaped--or are at least useful ways of understanding--the

development of the droits d'auteur tradition. On one side were

Diderot and the publishers promoting an expansive and perpetual

natural authorial right, which nevertheless was supposed to vest

suspiciously easily in publishers. On the other was Condorcet,

looking skeptically at authorial privileges as merely one type

of state interference with free markets and the free circulation

of books and ideas. In place of Diderot's perpetual natural

right, Condorcet sketched out a regime that encourages

production and distribution by granting the minimum rights

necessary for progress.

Different as they are, these two sides share a common ground.

They both focus, though for different reasons, on

"expression"--the imprimatur of the author's unique human spirit

on the ideas and facts that he or she transmits. It is this

"original expression" that modern copyright and the modern

droits d'auteur actually cover. In today's copyright law, the

facts and ideas in an author's work proceed immediately into the

public domain. In other work, I have argued that by confining

the property right tightly to the "original expression" stemming

from the unique personality of an individual author the law

seems to accomplish a number of things simultaneously. It

provides

a conceptual basis for partial, limited property rights,

without completely collapsing the notion of property into the

idea of a temporary, limited, utilitarian state grant, revocable

at will. [At the same time it offers] a moral and philosophical

justification for fencing in the commons, giving the author

property in something built from the resources of the public

domain--language, culture, genre, scientific community, or what

have you. If one makes originality of spirit the assumed feature

of authorship and the touchstone for property rights, one can

see the author as creating something entirely new--not

recombining the resources of the commons.47

That is an account of the romantic theory of authorship in the

context of contemporary Anglo-American copyright law. But when

one looks at the history of the French droits d'auteur

tradition, it is striking how well those words describe that

system as well. When the French legislature finally produced a

law of authors' rights it turned out, in Hesse's words, to

reflect "an epistemologically impure and unstable legal

synthesis that combined an instrumentalist notion of the public

good with a theory of authorship based on natural rights."

Although it drew on a Diderotist rhetoric of the sanctity of

individual creativity as an inviolable right, it did not

rigorously respect the conclusions Diderot drew from this

position. In contrast to the privilège d'auteur of 1777, the law

did not recognize the author's claim beyond his lifetime but

consecrated the notion, advanced first by Pierre Manuel to

defend his edition of Mirabeau, that the only true heir to an

author's work was the nation as a whole. This notion of a public

domain, of democratic access to a common cultural inheritance on

which no particular claim could be made, bore the traces not of

Diderot, but of Condorcet's faith that truths were given in

nature and, although mediated through individual minds, belonged

ultimately to all. Progress in human understanding depended not

on private knowledge claims, but on free and equal access to

enlightenment. An author's property rights were conceived as

recompense for his service as an agent of enlightenment through

publication of his ideas. The law of 1793 accomplished this task

of synthesis through political negotiation rather than

philosophical reasoning--that is, by refashioning the political

identity of the author in the first few years of the Revolution

from a privileged creature of the absolutist police state into a

servant of public enlightenment.48

Hesse argues that this instability would continue through the

revolutionary period. I agree; indeed I would argue that it does

so to the present day. Why? The answer is simple. The moral

rights view simply proved too much. Without a limiting

principle--of time, or scope, or effect--it seemed to presage a

perpetual and expansive control of expressive creations, and

perhaps of inventions. Our intuition that this is a bad idea

comes from our intuitive understanding that "Poetry can only be

made out of other poems; novels out of other novels. All of this

was much clearer before the assimilation of literature to

private enterprise."49

This is the flip side of the arguments that Diderot and later

Hugo put forward. Perhaps the romantic author does not create

out of thin air. Perhaps he or she is deeply embedded in a

literary, musical, cultural, or scientific tradition that would

not flourish if treated as a set of permanently walled private

plots. Even within the tradition, we see a recognition that the

continuing progress of enlightenment and the ssacred genius of

authors might both require a certain level of freedom in

knowledge inputs and a certain level of control over knowledge

outputs. We see also the recognition that these two requirements

are in fundamental tension. When it comes to reconciling that

tension we must turn in part to utilitarian effects. In short,

we should pay attention to Jefferson and Macaulay and Condorcet,

not just because their thoughts shaped the legal and

philosophical traditions in which we now work--though that is

particularly true in the case of the United States--but because

they were right, or at least more right than the alternative.

Of course, we could build a culture around a notion of natural,

absolute, and permanent rights to invention and expression. It

is not a world many of us would want to live in. There are

exceptions of course. In a recent New York Times op-ed, Mark

Helprin--author of Winter's Tale--argued that intellectual

property should become perpetual.50 After all, rights in real

estate or personal property do not expire--though their owners

might. Why is it that copyrights should "only" last for a

lifetime plus seventy additional years, or patents for a mere

twenty? Mr. Helprin expresses respect for the genius of the

framers, but is unmoved by their firm command that rights be

granted only for "limited times." He concludes that it was a

misunderstanding. Jefferson did not realize that while ideas

cannot be owned, their expression can. What's more, the framers

were misled by their rustic times. "No one except perhaps

Hamilton or Franklin might have imagined that services and

intellectual property would become primary fields of endeavor

and the chief engines of the economy. Now they are, and it is no

more rational to deny them equal status than it would have been

to confiscate farms, ropewalks and other forms of property in

the 18th century." Poor Jefferson. How lucky we are to have Mr.

Helprin to remedy the consequences of his lack of vision.

Or perhaps not. Think of the way that Jefferson traced the

origins of the mechanical arts used in the elevators and hopper-

boys all the way back to ancient Persia. (In Mr. Helprin's

utopia, presumably, a royalty stream would run to Cyrus the

Great's engineers.) Jefferson's point was that for the process

of invention to work, we need to confine narrowly the time and

scope of the state-provided monopoly, otherwise further

inventions would become impossible. Each process or part of a

new invention would risk infringing a myriad of prior patents on

its subcomponents. Innovation would strangle in a thicket of

conflicting monopolies with their roots vanishing back in time.

Presumably the title of Mr. Helprin's excellent novel would

require clearance from Shakespeare's heirs.

Of course, one could construct a more modest Lockean idea of

intellectual property51 --building on the notion of "enough and

as good" left over for others and drawing the limits tightly

enough to avoid the worst of Mr. Helprin's excesses. But as one

attempts to do this systematically, the power of the

Jeffersonian vision becomes all the more apparent--at least as a

starting place.

The Jefferson Warning will play an important role in this book.

But my arguments here have implications far beyond Jefferson's

time, country, or constitutional tradition. In the last

analysis, I hope to convince you of the importance of the

Jefferson Warning or the views of Macaulay not because they are

famous authorities and revered thinkers or because they framed

constitutions or debated legislation. I wish to convince you

that their views are important because they encapsulate neatly

an important series of truths about intellectual property. We

should listen to the Jefferson Warning not because it is

prestigious but because of its insight. As the Diderot-Condorcet

debates point out, the questions on which Jefferson and Macaulay

focused do not disappear merely because one embraces a

philosophy of moral rights--if anything, they become more

pressing, particularly when one comes to define the limits of

intellectual property in scope and time. I ask that those

readers who remain leery of the Jeffersonian focus concentrate

on that last issue. In an era when we have been expanding

intellectual property rights relentlessly, it is a crucial one.

If the Jefferson Warning produces in my unconvinced reader even

a slight queasiness about the likely effects of such a process

of expansion, it will have done its job--though in fact the

tradition it represented was much richer than a simple

utilitarian series of cautions.

A TRADITION OF SKEPTICAL MINIMALISM

Eighteenth- and nineteenth-century intellectual property debates

went beyond Macaulay's antimonopolist focus on price, access,

quality, and control of the nation's literary heritage. While

Macaulay is the best-remembered English skeptic from the 1840s,

there were other, more radical skeptics who saw copyright

primarily as a "tax on literacy" or a "tax on knowledge,"

identical in its effects to the newspaper stamp taxes.52 This

was a time when mass literacy and mass education were the hotly

debated corollaries to the enlargement of the franchise. The

radical reformers looked with hostility on anything that seemed

likely to raise the cost of reading and thus continue to

restrict political and social debate to the wealthier classes.

Macaulay worried about a world in which "a copy of Clarissa

would . . . [be] as rare as an Aldus or a Caxton."53 His more

radical colleagues saw copyright--to use our ugly jargon rather

than theirs--as one of the many ways in which state

communications policy is set and the communicative landscape

tilted to favor the rich and powerful.54 Macaulay worried about

the effects of monopoly on literature and culture. All of them

worried about the effects of copyright on democracy, on speech,

on education. In the world of the Internet, these skeptics too

have their contemporary equivalents.

Patent law also attracted its share of attacks in the mid-

nineteenth century. A fusillade of criticism, often delivered by

economists and cast in the language of free trade, portrayed the

patent system as actively harmful.

At the annual meeting of the Kongress deutscher Volkswirthe

held in Dresden, September 1863, the following resolution was

adopted "by an overwhelming majority": "Considering that patents

hinder rather than further the progress of invention; that they

hamper the prompt general utilization of useful inventions; that

on balance they cause more harm than benefit to the inventors

themselves and, thus, are a highly deceptive form of

compensation; the Congress of German Economists resolves: that

patents of invention are injurious to common welfare."55

In the Netherlands, the patent system was actually abolished in

1869 as a result of such criticisms. Observers in a number of

other countries, including Britain, concluded that their

national patent systems were doomed. Various proposals were made

to replace patents, with state-provided prizes or bounties to

particularly useful inventions being the most popular.56

These snippets are hardly sufficient to constitute any kind of

survey of critical reactions to intellectual property systems,

but I believe that nevertheless they give us some sense of

typical debates. What do these debates tell us?

From the early days of intellectual property as we know it now,

the main objections raised against it were framed in the

language of free trade and "anti-monopoly." In the United

States, the founding generation of intellectuals had been

nurtured on the philosophy of the Scottish Enlightenment and the

history of the struggle against royal monopolies. They saw the

arguments in favor of intellectual property but warned again and

again of the need to circumscribe both its term and its scope.

This is the point at the heart of Jefferson's letter. This is

why he insisted that we understand the policy implications of

the differences between tangible property and ideas, which "like

fire" are "expansible over all space, without lessening their

density in any point."

What were the concerns of these early critics? They worried

about intellectual property producing artificial scarcity, high

prices, and low quality. They insisted that the benefits of each

incremental expansion of intellectual property be weighed

against its costs. Think of Macaulay discussing Johnson's

preference for a shin of beef rather than another slice of

postmortem copyright protection. They worried about its justice;

given that we all learn from and build on the past, do we have a

right to carve out our own incremental innovations and protect

them by intellectual property rights?57 Price aside, they also

worried that intellectual property (especially with a lengthy

term) might give too much control to a single individual or

corporation over some vital aspect of science and culture. In

more muted fashion, they discussed the possible effects that

intellectual property might have on future innovation. The most

radical among them worried about intellectual property's effects

on political debate, education, and even control of the

communications infrastructure, though they did not use that

particular phrase. But the overwhelming theme was the promotion

of free trade and a corresponding opposition to monopolies.

Now if we were to stop here and simply require that today's

policy makers, legislators, and judges recite the Jefferson

Warning before they rush off to make new intellectual property

rules for the Internet and the genome, we would have

accomplished a great deal. National and international policy

makers are keen to set the "rules of the road for the digital

age." If they would momentarily pause their excited millenarian

burbling and read the points scratched out with a quill pen in

1813, or delivered (without PowerPoint support) on the floor of

the House of Commons in the 1840s, we would be better off.

Everyone is beginning to understand that in the world of the

twenty-first century the rules of intellectual property are both

vital and contentious. How good it would be then if our debate

on intellectual property policy were as vigorous and as informed

as the debates of the nineteenth century. (Though we might hope

it would also be more democratic.)

And yet . . . there is much that is missing from the skepticism

of the eighteenth and nineteenth centuries and much that remains

unclear. Look at the structure of these comments; they are

framed as criticisms of intellectual property rather than

defenses of the public domain or the commons, terms that simply

do not appear in the debates. There is no real discussion of the

world of intellectual property's outside, its opposite. Most of

these critics take as their goal the prevention or limitation of

an "artificial" monopoly; without this monopoly our goal is to

have a world of--what? The assumption is that we will return to a

norm of freedom, but of what kind? Free trade in expression and

innovation, as opposed to monopoly? Free access to expression

and innovation, as opposed to access for pay? Or free access to

innovation and expression in the sense of not being subject to

the right of another person to pick and choose who is given

access, even if all have to pay some flat fee? Or is it common

ownership and control that we seek, including the communal right

to forbid certain kinds of uses of the shared resource? The

eighteenth- and nineteenth-century critics brushed over these

points; but to be fair, we continue to do so today. The opposite

of property, or perhaps we should say the opposites of property,

are much more obscure to us than property itself.

For the most part, the antimonopolist view of intellectual

property makes a simple case. Monopolies are bad. Have as few as

possible and make them as narrow and as short as possible. This

is a fine principle, but it falls short of an affirmative

explanation and defense of the role of the public domain or the

commons in enabling creativity, culture, and science. That is a

shame because just as intellectual property is different from

tangible property, so too is its opposite, its outside.

What are those opposites? The two major terms in use are "the

public domain" and "the commons." Both are used in multiple

ways--probably a good thing. The public domain is material that

is not covered by intellectual property rights. Material might

be in the public domain because it was never capable of being

owned. Examples would be the English language or the formulae of

Newtonian physics. Alternatively, something might be in the

public domain because rights have expired. The works of

Shakespeare or the patents over powered flight are examples.

Some definitions of the public domain are more granular. They

focus not only on complete works but on the reserved spaces of

freedom inside intellectual property. The public domain would

include the privilege to excerpt short quotations in a review.

This vision is messier, but more instructive. If one uses a

spatial metaphor, the absolutist vision is a tessellated map.

Areas of private property are neatly delineated from areas of

the public domain. Mozart's plot sits next to that of Britney

Spears; one public, the other private. In the granular view, the

map is more complex. Ms. Spears' plot is cut through with rights

to make fair use, as well as with limitations on ownership of

standard themes. Instead of the simple tiled map, the granular

vision has private plots with public roads running through them.

In popular discussion, we tend to use the absolutist view of

both property and the public domain. Lawyers prefer the more

complex view of property and are coming slowly to have a

similarly complex view of the public domain. That is the

definition I will be using.

The term "commons" is generally used to denote a resource over

which some group has access and use rights--albeit perhaps under

certain conditions. It is used in even more ways than the term

"public domain." The first axis along which definitions of the

term "commons" vary is the size of the group that has access

rights. Some would say it is a commons only if the whole society

has access. That is the view I will take here.

The other difference between public domain and commons is the

extent of restrictions on use. Material in the public domain is

free of property rights. You may do with it what you wish. A

commons can be restrictive. For example, some open source

software makes your freedom to modify the software contingent on

the condition that your contributions, too, will be freely open

to others. I will discuss this type of commons in Chapter 8.

So these are working definitions of public domain and commons.

But why should we care? Because the public domain is the basis

for our art, our science, and our self-understanding. It is the

raw material from which we make new inventions and create new

cultural works. Why is it so important? Let us start with the

dry reasons.

Information and innovation are largely nonrival and

nonexcludable goods. This is Jefferson's point, though expressed

in less graceful language. It has some interesting corollaries.

Information is hard to value until you have it, but once you

have it, how can you dispossess yourself of it? The apple can be

taken back by the merchant if you decide not to buy. The facts

or the formulae cannot. The moment when you might have decided

to pay or not to pay is already over. The great economist

Kenneth Arrow formalized this insight about information

economics,58 and it profoundly shapes intellectual property

policy. (To a large extent, for example, the requirement of

"patent disclosure" attempts to solve this problem. I can read

all about your mousetrap but I am still forbidden from using it.

I can decide whether or not to license your design at that

point.) But for all the material in the public domain, where no

intellectual property right is necessary, this point is solved

elegantly by having the information be "free as the air to

common use." All of us can use the same store of information,

innovation, and free culture. It will be available at its cost

of reproduction--close to zero--and we can all build upon it

without interfering with each other. Think of the English

language, basic business methods, tables of logarithms, the

Pythagorean theorem, Shakespeare's insights about human nature,

the periodic table, Ohm's law, the sonnet form, the musical

scale.

Would you have paid to purchase access to each of these? I might

tell you that English was a superior communication tool--a really

good command language for your cognitive operating system. There

could be levels of access with corresponding prices. Would you

pay to get access to "English Professional Edition"? We can

certainly imagine such a way of organizing languages. (To some

extent, scribal conventions operated this way. The languages of

the professions still do. One paid for access to "law French" in

the common law courts of England. One pays for an interpreter of

contemporary legal jargon in today's legal system. But even

there the language is free to the autodidact.) We can imagine

language, scientific knowledge, basic algebra, the tonic scale,

or the classics of four-hundred-year-old literature all being

available only as property. Those who had the highest "value for

use" would purchase them. Those who did not value them

highly--whether because they could not know what could be built

with them until they had done so or because they did not have

the money--would not. What would this world, this culture, this

science, this market look like?

It would probably be very inefficient, the economists tell us.

Perfect information is a defining feature of the perfect market.

The more commodified and restricted our access to information,

the less efficient the operation of the market, the more poorly

it allocates resources in our society. (The permanent and in

some sense insoluble tension between the need to provide

incentives to generate information, thus raising its cost, and

the need to have access to perfect information for efficiency is

the central feature of our intellectual property policy.)59 When

we commodify too much we actually undermine creativity, since we

are raising the price of the inputs for future creations--which

might themselves be covered by intellectual property rights. But

"inefficient" is too bloodless a way to describe this world. It

would be awful.

Our markets, our democracy, our science, our traditions of free

speech, and our art all depend more heavily on a public domain

of freely available material than they do on the informational

material that is covered by property rights. The public domain

is not some gummy residue left behind when all the good stuff

has been covered by property law. The public domain is the place

we quarry the building blocks of our culture. It is, in fact,

the majority of our culture. Or at least it has been.

I deliberately gave easy examples. It is obvious how unnecessary

but also how harmful it would be to extend property rights to

language, to facts, to business methods and scientific

algorithms, to the basic structures of music, to art whose

creators are long dead. It is obvious that this would not

produce more innovation, more debate, more art, more democracy.

But what about the places where the value of the public domain

is not obvious?

What if we were actually moving to extend patents to business

methods, or intellectual property rights to unoriginal

compilations of facts? What if we had locked up most of

twentieth-century culture without getting a net benefit in

return? What if the basic building blocks of new scientific

fields were being patented long before anything concrete or

useful could be built from them? What if we were littering our

electronic communication space with digital barbed wire and

regulating the tiniest fragments of music as if they were stock

certificates? What if we were doing all this in the blithe

belief that more property rights mean more innovation? The story

of this book is that we are.

The Jefferson Warning is important. It is, however, just a

warning. While it would be excellent to print it on pocket cards

and hand it to our elected representatives, that alone will not

solve the most pressing problems we face. In the chapters that

follow, I shall try to go further. In Chapter 3, I set the

process of expansion we are engaged in--our "second enclosure

movement"--in perspective by comparing it to the original

enclosures of the grassy commons of old England. In Chapter 4, I

jump from the world of the fifteenth or nineteenth century to

the world of the twenty-first, from elevators and grain hoppers

to video recorders, the Internet, and file-sharing services. I

use the story of several key legal disputes to illustrate a

broader history--the history of intellectual property's struggle

with communications technologies that allow people to copy more

cheaply. Strangely enough, the Jefferson Warning will be crucial

in understanding the debate over copyright online and, in

particular, in understanding the fear that drives our current

policy making, a fear I refer to as the Internet Threat.