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

Part 2, Chapter 6, Section 4
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 any person afterwards reprint and sell, for his own benefit, such book or literary composition, against the will of the author?" 3. "If such action wo...

Part 2, Chapter 6, Section 3
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 the question, both on precedent, and as an abstract one of natural, or common law. The precedents were from the court of chancery; and the most of them were en...

Part 2, Chapter 6, Section 2
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 in 1415. It had been much encroached upon before; but from this time the government degenerated rapidly into absolutism. And such has now been its character for some four hundred...

Part 2, Chapter 6, Section 1
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 question of intellectual property, consists of, and is identical with, the simple princip...

Part 1, Chapter 5
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 nothing. But the next crop of wheat would be a small one; and people would then learn, that in the long run, the cheapest mode, and the only mode, of procuring a consta...

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, corporeal sub...

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 ot...

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, both in England ...

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, relat...

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 for...