The Law of Intellectual Property : or An Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas

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Part I: The Law of Intellectual Property. Chapter I.: The Law of Nature In Regard to Intellectual Property. Section I.: The Right of Property In Ideas to Be Proved By Analogy. Section II.: What Is Wealth? Section III.: What Is Property? Section IV.: What Is the Right of Property? Section V.: What Things Are Subjects of Property? Section VI.: How Is the Right of Property Acquired. Section VII.: What Is the Foundation of the Right of Property? Section VIII.: How Is the Right of Property Transferred? Section IX.: Conclusions From the Preceding Principles. Chapter II.: Objections Answered. Section I.: Objection First. Section II.: Objection Second. Section III.: Objection Third. Section IV.: Objection Fourth.

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Entered according to Act of Congress, in the year 1855, By LYSANDER SPOONER, in the Clerk's Office of the District Court of the District of Massachusetta. Printed by Stact and Richardson, 11 Milk St., Boston. NOTE. In the second volume of this work, it is the intention of the author to discuss the following topics, viz.:— 1. The Common Law of England, relative to Intellectual Property—reviewing the English decisions. 2. The Constitutional Law of the United States—reviewing the acts of Congress and the judicial decisions. 3. International Law. 4. Various other topics of minor importance connected with the subject. He expects to prove, among other things, that it is the present constitutional duty of courts, bo...

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PART I THE LAW OF INTELLECTUAL PROPERTY. CHAPTER I. THE LAW OF NATURE IN REGARD TO INTELLECTUAL PROPERTY. SECTION I. The Right of Property in Ideas to be proved by Analogy. In order to understand the law of nature in regard to intellectual property, it is necessary to understand the principles of that law in regard to property in general. We shall then see that the right of property in ideas, is at least as strong as—and in many cases identical with—the right of property in material things. To understand the law of nature, relative to property in general, it is necessary, in the first place, that we understand the distinction between wealth and property; and, in the second place, that we understand how and when wealth b...

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SECTION II. What is Wealth? Wealth is any thing, that is, or can be made, valuable to man, or available for his use. The term wealth properly includes every conceivable object, idea, and sensation, that can either contribute to, or constitute, the physical, intellectual, moral, or emotional well-being of man. Light, air, water, earth, vegetation, minerals, animals, every material thing, living or dead, animate or inanimate, that can aid, in any way, the comfort, happiness, or welfare of man, are wealth. Things intangible and imperceptible by our physical organs, and perceptible only by the intellect, or felt only by the affections, are wealth. Thus liberty is wealth; opportunity is wealth; motion or labor is wealth; rest is wealth; r...

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SECTION III. What is Property? Property is simply wealth, that is possessed—that has an owner; in contradistinction to wealth, that has no owner, but lies exposed, unpossessed, and ready to be converted into property, by whomsoever chooses to make it his own. All property is wealth; but all wealth is not property. A very small portion of the wealth in the world has any owner. It is mostly unpossessed. Of the wealth in the ocean, for example, only an infinitesimal part ever becomes property. Man occasionally takes possession of a fish, or a shell, leaving all the rest of the ocean's wealth without an owner. A somewhat larger proportion, but still a small proportion, of the wealth that lies in and upon the land, is property. Of the ...

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SECTION IV. What is the Right of Property? The right of property is simply the right of dominion. It is the right, which one man has, as against all other men, to the exclusive control, dominion, use, and enjoyment of any particular thing. The principle of property is, that a thing belongs to one man, and not to another—mine, and thine, and his, are the terms that convey the idea of property. The word property is derived from proprius, signifying one's own. The principle of property, then, is the principle of one's personal ownership, control, and dominion, of and over any thing. The right of property is one's right of ownership, enjoyment, control, and dominion, of and over any object, idea, or sensation. The proprietor of a...

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SECTION V. What Things are Subjects of Property? Every conceivable thing, whether intellectual, moral, or material, of which the mind can take cognizance, and which can be possessed, held, used, controlled, and enjoyed, by one person, and not, at the same instant of time, by another person, is rightfully a subject of property. All the wealth, that has before been described—that is, all the things, intellectual, moral, emotional, or material, that can contribute to, or constitute, the happiness or well-being of man; and that can be possessed by one man, and not at the same time by another, is rightfully a subject of property—that is, of individual ownership, control, dominion, use, and enjoyment. The air, that a man inhales...

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SECTION VI. How is the Right of Property acquired. The right of property, in material wealth, is acquired, in the first instance, in one of these two ways, viz.: first, by simply taking possession of natural wealth, or the productions of nature; and, secondly, by the artificial production of other wealth. Each of these ways will be considered separately. 1. The natural wealth of the world belongs to those who first take possession of it. The right of property, in any article of natural wealth, is first acquired by simply taking possession of it. Thus a man, walking in the wilderness, picks up a nut, a stick, or a diamond, which he sees lying on the ground before him. He thereby makes it his property—his own. It is thenceforth hi...

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SECTION VII. What is the Foundation of the Right of Property? The right of property has its foundation, first, in the natural right of each man to provide for his own subsistence; and, secondly, in his right to provide for his general happiness and well-being, in addition to a mere subsistence. The right to live, includes the right to accumulate the means of living; and the right to obtain happiness in general, includes the right to accumulate such commodities as minister to one's happiness. These rights, then, to live, and to obtain happiness, are the foundations of the right of property. Such being the case, it is evident that no other human right has a deeper foundation in the nature and necessities of man, than the right of property....

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SECTION VIII. How is the Right of Property Transferred? From the very nature of the right of property, that right can be transferred, from the proprietor, only by his own consent. What is the right of property? It is, as has before been explained, a right of control, of dominion. If, then, a man's property be taken from him without his consent, his right of control, or dominion over it, is necessarily infringed; in other words, his right of property is necessarily violated. Even to use another's property, without his consent, is to violate his right of property; because it is for the time being, assuming a dominion over wealth, the rightful dominion over which belongs solely to the owner. These are the principles of the law of nature, r...

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SECTION IX. Conclusions from the Preceding Principles. The conclusions, that follow from the principles now established, obviously are, that a man has a natural and absolute right—and if a natural and absolute, then necessarily a perpetual, right—of property, in the ideas, of which he is the discoverer or creator; that his right of property, in ideas, is intrinsically the same as, and stands on identically the same grounds with, his right of property in material things; that no distinction, of principle, exists between the two cases.

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CHAPTER II. OBJECTIONS ANSWERED. The objections that will be urged to the principles of the preceding chapter, are the following. SECTION I. Objection First. It will be said there can be no right of property in ideas, for the reason that an idea has no corporeal substance. This is an ancient argument, but it obviously has no intrinsic weight or soundness; for corporeal substances are not the only things that have value; they are not the only things that contribute to the welfare of man; they are not the only things that can be possessed by one man, and not by another; they are not the only things that can be imparted by one man to another; nor are they the only things that are the products of labor. Indeed, correctly speaking, corp...

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SECTION II. Objection Second. The second objection, that is urged against the right of property in ideas, is, that, admitting, (what cannot with the least reason be denied,) that a man is the sole proprietor of an idea, so long as he retains it in his exclusive possession, he nevertheless loses all exclusive right of property in it the moment he communicates the idea to another person, because that other person thereby acquires as complete possession of the idea, as the original proprietor. This is a very shallow objection, since it is founded wholly on the assumption, that if a man once entrust his property in another man's keeping, he thereby loses his own right of property in it; whereas men are constantly entrusting their property in...

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SECTION III. Objection Third. A third objection, that has been urged against a right of property in ideas, any longer than they remain in the exclusive possession of the originator, is, that ideas are of the nature of wild animals, which, being once let loose, fly beyond the control of man; thus interposing an obstacle, in a law of their own nature, to the maintenance of any dominion over them, after they have once been liberated. This objection is utterly fanciful and unfounded. The resemblance between a flying thought, and a flying bird, may be sufficiently striking for purposes of poetry and metaphor, but has none of the elements of a legal analogy. A thought never flies. It goes only as it is carried by man. It never escapes beyond t...

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SECTION IV. Objection Fourth. It is said that ideas have no ear-marks, by which their ownership may be known. And hence it has been inferred that ideas cannot be subjects of ownership; though it would doubtless puzzle any one to show any connection between the premises and the conclusion. This objection is as frivolous as the others; for neither has corporeal property usually, if ever, any ear-marks by which the world at large can know who is the owner. Nevertheless, when mankind see corporeal wealth, as a horse, a house, or a farm, for example, which bears evidence of human labor, and which has too much market value to justify the idea that the owner would voluntarily abandon it, they infer that it has an owner, though he may be at the ...

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SECTION V. Objection Fifth. A fifth objection, that is urged to a man's having a right of property in his inventions, is, that the course of events, and the general progress of knowledge, science, and art, suggest, point to, contribute to, and aid the production of, certain inventions; and that it would therefore be wrong to give to a man an exclusive and perpetual property, in a device, or idea, which is not the unaided production of his own powers; but which so many circumstances, external to himself, have contributed and aided to bring forth. This objection is as short-sighted as the others. If sound, it would apply as strongly against the right of property in material, as in intellectual wealth. But has a man no right of property in ...

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SECTION VI. Objection Sixth. A sixth objection is, that since "the course of events, and the general progress of knowledge, science, and art, suggest, point to, contribute to, and aid the production of, certain inventions," as mentioned in the preceding section, it is to be presumed that, if a particular invention were not produced by one mind, it soon would be by another; and that, because one man happens to be the first inventor, is no reason why he should have an exclusive and perpetual property in a device, or idea, which would have been brought forth, before a very long time, by some other mind, if it had not been done by him. Admitting, for the sake of the argument, that B would have produced a certain idea, if A had not done it ...

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SECTION VII. Objection Seventh. It is said that two men sometimes make the same invention; and that it would therefore be wrong to give the whole invention to one. The answer to this objection is, that the fact that two men produce the same invention, is a very good reason why the invention should belong to both; but it is no reason at all why both should be deprived of it. If two men produce the same invention, each has an equal right to it; because each has an equal right to the fruits of his labor. Neither can deny the right of the other, without denying also his own. The consequence is, that they must either use and sell the invention in competition with each other, or unite their rights, and share the invention between them. Thes...

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SECTION VIII. Objection Eighth. It may be urged that, however just may be the principle of the right of property in ideas, still the difficulty of determining who is the true author of an invention, or idea, after that invention or idea has become extensively known to mankind, interposes a practical obstacle to the maintenance of any individual right of property in any thing so subtle, intangible, and widely diffused, as such an invention, or idea. This was unquestionably a very weighty and serious objection, in ruder times, when letters were unknown to the mass of the people, and when a thought was carried from mind to mind, unaccompanied by any reliable proof of the first originator. The facilities and inducements thus afforded to frau...

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SECTION IX. Objection Ninth. It is generally, if not universally, conceded that an inventor has a good moral claim for compensation for his invention; that he ought to be suitably, and even liberally, paid for his labor. At the same time, many, who make this concession, will say that to allow him an exclusive and perpetual property in his invention, would be transcending all reason in the way of compensation. This view of the case, it will be seen, denies to the inventor all exclusive right of property in his invention. It asserts that the invention really belongs to the public, and not to himself. And it only advocates the morality and equity of allowing him such compensation for his time and labor as is reasonable. And it maintains t...

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SECTION X. Objection Tenth. Another theory, advocated by some persons, is, that abstractly, and on principles of natural justice, men have the same right of property in their ideas, that they have in any other products of their labor; but that this property requires peculiar and extra ordinary protection; and that the present laws on the subject are in the nature of a compromise between the government and the inventor; the government giving extraordinary protection for a time, and the inventor, in consideration of that protection, giving up his property at the end of that time. There is plainly no foundation for this theory. In the first place, the government, instead of giving extraordinary protection, does not give even ordinary protec...

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SECTION XI. Objection Eleventh. It is said that ideas are unlike corporeal commodities in this respect, namely, that a corporeal commodity cannot be completely and fully possessed and used by two persons at once, without collision between them; and that it must therefore necessarily be recognized as the property of one only, in order that it may be possessed and used in peace; but that an idea may be completely and fully possessed and used by many persons at once, without collision with each other; and therefore no one should be allowed to monopolize it. This objection lays wholly out of consideration the fact, that the idea has been produced by one man's labor, and not by the labor of all men; as if that were a fact of no legal conseque...

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SECTION XII. Objection Twelfth. It is said that a man, by giving his ideas to others, does not thereby part with them himself, nor lose the use of them, as in the case of material property; that he only adds to other men's wealth, without diminishing his own; that his giving knowledge to other men is only lighting their candles by his, thereby giving them the benefit of light, without any loss of light to himself; and that therefore he should not be allowed any exclusive property in his ideas, nor any right to demand a price for that, which it is no loss to him to give to others. This objection is really the same as the next preceding one; and is only stated in a different form. The answers given to that objection, will apply with equal ...

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SECTION XIII. Objection Thirteenth. It is said that society have rights in ideas, that have been once made known to them; that a perpetual monopoly in the producer, destroys the rights of society; and that society have a right to perpetuate ideas once made known. Hence it is inferred that society have a right to confiscate ideas, and make them free to all, in order to prevent the producer's withholding them from the public, and thus causing them to perish unused. The primary assumption here is, "that society have rights in ideas once made known to them." From this assumption, the other assumptions and the inference naturally follow. They depend solely upon it, and are nothing without it. If, then, the first assumption be baseless, the...

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SECTION XIV. Objection Fourteenth. Another objection is, that after the author of an idea has once made it known to others, it is impossible for him ever to recover the exclusive possession of it. This objection is of no validity—and why? Because it is wholly unnecessary that he should have the exclusive possession of his idea, in order to practically exercise his right to the exclusive use of it. The objection assumes that it is practically impossible for a man to exercise his right to the "exclusive use" of an idea, unless he also have the exclusive possession of it. The objection rests solely on that assumption. Yet such an assumption is a self-evident absurdity; for the exclusive possession of an idea is not, in practice, a...

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SECTION XV. Objection Fifteenth. Another objection is, that ideas cannot be seized, on any legal process. Admitting, for the sake of the argument, what is probably true, that no way can be devised, by which a man's property, in ideas, can be taken on legal process, that fact interposes no obstacle whatever to their being treated, by the law, as property. There are many kinds of property, which the law protects, but which, nevertheless, the law cannot seize. For example. Reputation is property, and is protected by the law; yet it cannot be seized and sold, to pay a fine, or satisfy a debt. A man's health, strength, and beauty are property; and the law punishes an injury done to them; yet they cannot be seized and sold, on legal process. A...

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CHAPTER III. PERPETUITY AND DESCENT OF INTELLECTUAL PROPERTY. SECTION I. Perpetuity of Intellectual Property. If men have a natural right of property, in their intellectual productions, it follows, of necessity, that that right continues at least during life. Nature has certainly fixed no limit short of life, to the right of property. Limitation to a less period, would be contrary to the very nature of the right of property, which, as has been before repeatedly mentioned, is an absolute right of dominion; a right of having a thing entirely subject to one's will. If a man's right to exercise this dominion, were limited in duration, it would not be absolute. If, therefore, his will to exercise it, continue through his life, his right to ...

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SECTION II. Descent of Intellectual Property. There is the same reason, and as strong reason, why a man's intellectual property should descend to his relatives, as there is why his material property should do so. What is the ground, on which the law allows any man's property to go, at his death, to his wife, children, or other relatives? This, and nothing else, viz.: the law presumes that he acquired it for them, and intended it for their benefit. In short, it presumes that it was his will that it should go to them, rather than to mankind at large. And this is a reasonable presumption, (in the absence of express evidence to the contrary,) because, during life, men usually labor for, and devote their property to the support and welfare of...

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CHAPTER IV. THE SALE OF IDEAS. There remain to be considered some important questions, in regard to the sale of ideas, in connection with books, machines, statues, pictures, &c. We will first speak of the sale of them in connection with books; and of the other cases afterwards. When an author sells a copy of his book, does that sale carry with it the right to reprint the book? Or does he reserve that right exclusively to himself? If he reserve that right exclusively to himself, how does that reservation legally appear, when no express stipulation of the kind is shown? If the purchaser of a book do not buy with it the right to reprint it, what right of property or use does he buy, in the ideas which the book communicates? And how ar...

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CHAPTER V. THE POLICY OF PERPETUITY IN INTELLECTUAL PROPERTY. As a matter of public policy, the expediency of allowing a man a perpetual property in his ideas, is as clear as is that of allowing him a perpetual property in material things. What is the argument of policy against a perpetual property in ideas? Principally this—that the world will get ideas cheaper, if they get them for nothing, than if they pay for them. This argument would be just as good in favor of abolishing the right of property in the material products of men's labor, as it is for abolishing it in intellectual ones. Take wheat, for example. If the right of property in wheat were abolished, the world would get the stock of wheat, that is now on hand, for noth...

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PART II THE COMMON LAW OF ENGLAND. (VOL. I) CHAPTER VI. THE COMMON LAW OF ENGLAND RELATIVE TO INTELLECTUAL PROPERTY. SECTION I. What is the Common Law of England? In order to determine whether the Common Law of England sustains the right of authors and inventors to an absolute and perpetual property in their ideas, it is only necessary to determine what the Common Law of England really is. To many unprofessional readers, the term Common Law will convey no very certain or precise idea; and as I am anxious that they should fully understand this discussion, at every step, I shall define the term more at length than would otherwise be necessary. The Common Law of England, then, with a few exceptions, which are wholly immaterial to the...

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SECTION II. Why the Common Law Right of Property in Ideas has not been more fully Acknowledged. It will, I think, be hereafter rationally shown, that the nonestablishment, in England, of the right of property in ideas, is to be attributed solely to the overthrow of the ancient, constitutional, Common Law government, and to the establishment of arbitrary power in its stead. But to understand how such a cause has been productive of such an effect, we must attend somewhat to events and dates. The Great Charter—which was at once the embodiment and guarantee of the Common Law form of government, and which, within about two hundred years from the grant of it in 1215, was confirmed more than thirty times, was confirmed for the last time i...

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SECTION III. Review of the Case of Millar vs. Taylor. The question of an author's copyright at Common Law, first came to a decision by the court of King's Bench in 1769, in the case of Millar vs. Taylor.* Three of the Justices, Willes, Aston, and Lord Mansfield, decided in favor of the right; one, Justice Yates, opposed it. Each of the judges gave a written argument on the question. The want of unanimity in the court, and the inconsistency and deficiency of the arguments of the three Justices in favor of the right, have prevented their decision from being received as a settlement of the question; and there has probably been nearly or quite as much doubt on the point, among lawyers, since that decision as before. The Justices argued th...

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SECTION IV. Review of the Case of Donaldson and another, vs. Becket and another. This case came before the House of Lords, in 1774,* on an appeal from an injunction against publishing a book, whose statutory term of copyright had expired. The Lords directed the judges to give their opinions to the House on the following questions, viz.: 1. "Whether at common law, an author of any book or literary composition had the sole right of first printing and publishing the same for sale; and might bring an action against any person who printed, published and sold the same without his consent?" 2. "If the author had such a right originally, did the law take it away, upon his printing and publishing such book or literary composition; and might a...

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The Law of Intellectual Property : or An Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas

By Lysander Spooner (1855)

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