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...

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. All ...

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. If...

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 his, aga...

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, at all n...

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 the ...