The Law of Intellectual Property : Part 1, Chapter 4

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1855

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(1808 - 1887) ~ Individualist Anarchist and Unitarian Christian Abolitionist : The greatest natural rights thinker of the 19th century was the American lawyer and maverick individualist Lysander Spooner. He responded to the tumultuous events of his era, including the Panic of 1837 and the Civil War, with pamphlets about natural rights, slavery, money, trial by jury and other timely subjects. (From : Jim Powell Bio.)
• "Again, the doctrine that the minority ought to submit to the will of the majority proceeds, not upon the principle that government is formed by voluntary association and for an agreed purpose on the part of all who contribute to its support, but upon the presumption that all government must be practically a state of war and plunder between opposing parties..." (From : "Free Political Institutions," by Lysander Spooner.)
• "There is no particle of truth in the notion that the majority have a right to rule, or exercise arbitrary power over, the minority simply because the former are more numerous than the latter. Two men have no more natural right to rule one than one has to rule two." (From : "Free Political Institutions," by Lysander Spooner.)
• "The doctrine that the majority have a right to rule proceeds upon the principle that minorities have no right in the government; for certainly the minority cannot be said to have any rights in a government so long as the majority alone determine what their rights shall be." (From : "Free Political Institutions," by Lysander Spooner.)

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Part 1, Chapter 4

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 are legal tribunals to know what right of property, in the ideas, which the book communicates, is conveyed by the sale of the book itself?

Questions of this kind have been proposed, by those who deny that any exclusive right of multiplying copies, can remain with the author, after he has sold copies of his book unreservedly in the market. These persons say that, by selling his book unreservedly, the author necessarily sells the right to make any and all possible uses of the ideas communicated by the book; that the reprinting of the book is only one of the uses, to which the copy sold is capable of being applied; and that the right to use the copy for this purpose, is as much implied in the sale of the book, as is any other use of it whatever.

These questions and arguments were forcibly presented by Justice Yates, and by Lord Chief Justice De Gray, as follows.

Justice Yates said, "Every purchaser of a book is the owner of it; and, as such, he has a right to make what use of it he pleases.

"Property, according to the definition given of it by the defendant's counsel, is 'jus utendi, et fruendi' [the right of using and enjoying]. And the author, by empowering the bookseller to sell, empowers him to convey this general property; and the purchaser makes no stipulations about the manner of using it.

"The publisher himself, who claims this property, sold these books, without making any contract whatever. What color has he to retrench his own contract? or impose such a prohibition?" [a prohibition upon reprinting the book.]

"If the buyer of a book may not make what use of it he pleases, what line can be drawn, that will not tend to supersede all his dominion over it? He may not lend it, if he is not to print it; because it will entrench upon the author's profits. So that an objection might be made even to his lending the book to his friends; for he may prevent those friends from buying the book; and so the profits of such sale of it will not accrue to the author. I do not see that he would have a right to copy the book he has purchased, if he may not make a print of it; for printing is only a method of transcribing.

"With regard to books, the very matter and contents of the books are, by the author's publication of them, irrevocably given to the public; they become common; all the sentiments contained therein, rendered universally common; and when the sentiments are made common by the author's own act, every use of those sentiments must be equally common.

"To talk of restraining this gift, by any mental reservation of the author, or any bargain he may make with his bookseller, seems to me quite chimerical.

"It is by legal actions that other men must judge and direct their conduct; and if such actions plainly import the work being made common; much more, if it be a necessary consequence of the act, 'that the work is actually thrown open by it;' no private transaction, or secretly reserved claim of the author, can ever control that necessary consequence. Individuals have no power, (whatever they may wish or intend,) to alter the fixed constitution of things; a man cannot retain what he parts with. If the author will voluntarily let the bird fly, his property is gone; and it will be in vain for him to say 'he meant to retain' what is absolutely flown and gone."*

Lord Chief Justice De Gray said:

"But it is said, that the sale of a printed copy is a qualified or conditional sale, and that the purchaser may make all the uses he pleases of his book, except that one of reprinting it. But where is the evidence of this extraordinary bargain? or where the analogy of law to support the supposition? In all other cases of purchase, payment transfers the whole and absolute property to the buyer; there is no instance where a legal right is otherwise transferred by sale; an example of such a speculative right remaining in the seller. It is a new and metaphysical refinement upon the law; and the laws, like some manufactures, may be drawn so fine as at last to lose their strength with their solidity."*

These questions and arguments are of vital importance to the principle of intellectual property. They are worthy of being answered. They must be answered, before the principle of exclusive copyright can be maintained, as a part of the law of nature. Yet, I apprehend, they have never been adequately answered.

The common, and I believe the only, answers, that have ever been made to these arguments, have been, 1st. That it is only by the multiplication of copies, that an author can expect to get paid for the labor of producing his book; and therefore it would be unreasonable to suppose that he intends to part with his exclusive right to multiply copies, for so trivial a price as the profit made upon a single book. 2d. That if an author were to part with his exclusive right to multiply copies, his ideas might be misrepresented, mutilated, and attributed to other persons than himself; and thus his reputation suffer, without his having any means of redress; and that it is therefore unreasonable to suppose he intends to subject himself to the liability of such injustice, for so small a consideration as the profit on a single copy of his book.

These are no doubt weighty considerations; but they do not fully meet the question. A man, who gratuitously gives away his ideas in conversation, loses all chance of reaping any pecuniary profit from them. He is also liable to have his views misrepresented, mutilated, and attributed to others than himself. But the law does not, for these reasons, uniformly imply that he reserved any exclusive right of property in, or control over, them. And if it will not imply this, in the case of a man, who gives his ideas gratuitously to the public, why should it do it for a man who has sold, and received a price for, his ideas?

The argument of inadequacy of price is an insufficient one, for various reasons, as follows.

1. Inadequacy of price is, of itself, no objection to the validity of a sale, where no fraud is alleged.

2. Inadequacy of price is oftentimes, in practice, a very difficult thing to be proved; and would be especially so in the case of the copyrights of books. Men's opinions differ so much as to the intrinsic merits of particular books; and the market value of a copyright often depends so little upon the book's intrinsic merits, that inadequacy of price could seldom or never be proved. Milton, assuming that he had a perpetual copyright in his Paradise Lost, sold it for five pounds. Yet this was a legal sale, and its validity could not be impeached for inadequacy of price.

3. The difference in price between a book, of which the copyright is reserved, and one of which the copyright is not reserved, is too slight to afford any sufficient evidence, of itself, to a judicial tribunal, whether the copyright was, or was not, reserved.

4. If, as the opponents of an exclusive copyright contend, every purchaser of a book purchases with it the right of reprinting it, no one purchaser could afford to pay but a trivial price above the value of the book, independently of that right; because he would buy no exclusive right; but only a right to be held in common with all other purchasers of copies. He could therefore secure no monopoly in the publication of the book; but could only print it in competition with all others, who should choose to print it. For such a right he could, of course, afford to pay but a merely trivial price, independently of the value of the book for other uses. How then could it ever be proved that he had paid an inadequate price for such a right as he has purchased?

5. If the author, by selling each copy of his book unreservedly, sells with it the right of multiplying copies, then the presumption would be, that he received a price at least somewhat higher, for each copy, than he could have sold it for, if he had expressly stipulated that it should not be used for multiplying copies; and from this presumption it would follow, as a legitimate inference, that he had chosen to adopt this mode of getting paid for his copyright—that is, by a slightly additional price on each copy sold—rather than by the sale of the exclusive copyright to any one individual.

The original question, then, necessarily returns, viz.: What right has the purchaser of the book obtained? Has he purchased the right to multiply copies? Or only the right to use, in other ways, the particular copy that he has purchased? And, especially, how can legal tribunals know what right has been bought and sold?

It evidently will not do for an author, after he has sold a book unreservedly, to say, arbitrarily, that he did not intend to part with his exclusive copyright; since it is clear that, in law, every man must be held to have intended every thing that is necessarily implied in his voluntary act.

The whole question, then, resolves itself into this, viz.: What, on legal principles, is necessarily implied in the sale of a book, by an author, when no express stipulation is entered into, as to the use that is to be made of it? In other words, What rights, in the ideas communicated by the book, does the author necessarily convey, when the sale of the book itself is qualified by no express restriction upon its use?

I shall offer an answer to this question, by attempting to prove, what seems almost too nearly self-evident to need to be proved, viz.: That a book, and the ideas it describes, are, in fact, and in law, distinct commodities; and that an unqualified sale of the book does not, therefore, of itself alone, imply any sale whatever of the ideas it describes, nor the conveyance of any right whatever to the use of those ideas.

By this I mean that the sale of the book conveys, of itself, no right of property or use in the ideas, beyond that merely mentalpossession and mental enjoyment of them, which are indeed a species of property and use; and necessarily, or at least naturally, follow from reading the book; but which, for the sake of brevity and clearness in this discussion, I shall leave out of consideration.*

It will therefore be understood, when, in the remainder of this chapter, I speak of "property" in, and "use" of, ideas, that I mean a property and use beyond, or additional to, this merely mental possession and enjoyment of them.

To state more precisely the point to be proved. Suppose the author of a valuable mechanical invention were to write, and sell unreservedly in the market, a book describing his machine so fully that a reader would be able, from the description given, to construct and operate a similar machine. The purchaser of the book would, in this case, acquire a right to the mental possession, and mental enjoyment, of all the knowledge communicated by the book; but he would acquire, simply by virtue of his purchase of the book, no right whatever to use that knowledge in constructing or operating a machine like the one described. And the same principle applies to all other ideas described in books. This is the point to be proved.

If the first of the foregoing propositions be true, viz.: "That a book, and the ideas it communicates, are, in fact, and in law, distinct commodities," the truth of the succeeding proposition, viz.: "That an unqualified sale of the book does not, of itself alone, imply any sale whatever of the ideas it describes, nor the conveyance of any right whatever to the use of those ideas," would seem to follow of course; because the sale of one thing can, perhaps, never, of itself, imply the sale of another thing, that has a separate and distinct existence.

That a book, and the ideas it communicates, are, in fact and in law, separate and distinct commodities, is apparent from the following considerations, viz.

1. What is an idea? It is a production of the mind. It is wholly immaterial. It has no existence, except in the mind. It can exist only in the mind. It no more exists in a book, than it does in a stone, or a tree. It can no more exist in a book, than in a stone, or a tree.

2. What is a book? It is mere paper and ink. It is entirely material. In its nature, it differs as much from an idea, as a stone or a tree differs from an idea. There is no more natural affinity between a book and an idea, than there is between a stone, or a tree, and an idea. That is, an idea will no more inhere in, or adhere to, a book, than it will inhere in, or adhere to, a stone or a tree.

When, therefore, a man buys a book, he does not buy any ideas; because ideas themselves are no part of the book; nor are they in any way attached to the book. They exist only in the mind.

A book, therefore, does not, as, in common parlance, is habitually asserted, contain, any ideas. The most that can be said, is, that it represents, describes, or perhaps more properly still, suggests, or brings to mind, ideas. And how does it do this? In this way only. The book consists of paper, with certain characters, in ink, stamped upon it. These characters were devised to be used as arbitrary signs, or representatives, of certain sounds uttered by the human voice. And by common consent among those, who are acquainted with these arbitrary significations, that have been attached to them, they are used to represent those sounds. The vocal sounds, which these characters arbitrarily represent, are, by common consent, used by mankind, as the names of certain ideas. These names of the ideas are not the ideas themselves, any more than the name of a man is the man himself. But when we hear the names of these ideas, the ideas themselves are brought to our minds; just as, when we hear the name of a man, the man himself is brought to mind. In this way the characters printed, in ink, in a book, are used as the signs, representatives, or names, at second hand, of men's ideas; that is, they represent certain sounds, which sounds stand for, represent, and thus call to mind, the ideas. This is all the resemblance a book has to the ideas, which it is employed to communicate.

The most, therefore, that can be said of a book, is, that it consists of, or contains, certain material things, to wit, characters in ink, stamped on paper, which, by common consent among mankind, are used to represent, describe, suggest, or carry to one's mind, certain immaterial things, to wit, ideas.

It is, therefore, only by a figure of speech, that we say that a book contains ideas. We mean only that it contains, or consists of, certain material things, which suggest ideas. It contains only such material signs, symbols, or arbitrary representatives of ideas, as one mind employs in order to suggest or convey its ideas to other minds.

Now, unless the sale of a material symbol, or representative, be legally and necessarily identical with the sale of the immaterial idea, which that symbol represents, or suggests, it is clear that the sale of a book is not, legally or necessarily, identical with the sale of the ideas, which that book may suggest to the reader.

The ideas themselves are not contained in the book; they constitute no part of the book; they have their whole existence entirely separate from the book—that is, in the mind; the whole object, design, and effect of the book are, to suggest certain ideas to the mind of the reader, and thereby act as a vehicle, or instrumentality, for conveying the ideas from one mind to another.

What ground is there, then, for saying that the sale of the book is necessarily or legally identical with the sale of the ideas, which it communicates, describes, or suggests? None whatever.

Suppose a man make a book, containing such drawings, pictures, and written descriptions, of his house, his farm, his horses, and his cattle, as are sufficient to bring those commodities to the mind of the reader. And suppose he then sell that book unreservedly in the market. Does the purchaser of the book acquire, by virtue of that purchase, any right of property or use in the commodities described in the book? Certainly not. And why not? Simply because the book, and the things it describes, are, in fact, and in law, separate and distinct commodities; and the sale of the one does not, therefore, at all imply the sale of the other.

The same principle applies to a book, that describes ideas, instead of houses and lands. The book, and the ideas it describes, are as much separate and distinct commodities, in the one case, as are the book, and the houses and lands it describes, in the other. And the sale of the book, that describes the ideas, no more implies the sale of the ideas, than the sale of the book, that describes the houses and lands, implies the sale of the houses and lands.

The only difference between the two cases, is this wholly immaterial one, viz.: that the written descriptions, of the ideas, are sufficient to put the reader in actual possession of the ideas described—that is, in mental possession of them, which is the only possession, of which they are susceptible; whereas the written descriptions, of the houses and lands, are not sufficient to put the reader in actual possession of those commodities; since the possession of houses and lands must be a physical, instead of a mental one. But this difference, in the two cases, is wholly immaterial to the right of property for use; because simple possession of the ideas, (and this is all the book gives,) is of no importance, in law, without the right of property for use—as has been already explained in chapter 2d, section 2.*

The conclusion, therefore, that the sale of a book, describing ideas, gives no right of property in the ideas, for use, is just as valid and inevitable, as is the conclusion, that the sale of a book, describing houses and lands, gives no right of property in the houses and lands, for use.

An author, in selling a book, sells nothing but the book itself; the right to use the book itself; and the right to all the benefits, which necessarily or naturally result to the reader from the use of the book alone. He sells nothing that the book describes; nor the right to use any thing that the book describes.

The question arises, then, what is necessarily, naturally, or legally involved in the use of the book alone? The answer is this.

The whole object and effect of the book itself, as a representative of ideas, are accomplished, when it has suggested to its readers all the ideas which it can suggest. Every possible use and power of the book itself, in relation to the ideas it describes, are exhausted in the execution of that single function. After that function is performed, the book itself is thrown aside, and has no part nor lot whatever in any of the uses, to which the ideas, it has suggested, may be applied. How, then, can it be said that the use of the book involves the use of the ideas it communicates, when the use of the ideas is a wholly separate act from the use of the book itself; and the use of the book itself is a wholly separate act from the use of the ideas? There would be just as much reason in saying that the use of a book, that described a farm, involved the use of the farm, as there is in saying that the use of a book, describing ideas, involves the use of those ideas.

Plainly, then, an author, by describing his ideas in a book, and then selling the book for use, gives no more right to the use of his ideas, than a man, who describes his farm in a book, and then sells the book for use, gives a right to the use of his farm.

Certainly, too, every purchaser of a book, that describes ideas, is as much bound to know, that the book and the ideas are separate and distinct commodities, as the purchaser of a book, that describes a farm, is bound to know that the book and the farm are separate and distinct commodities. And the purchaser of a book is also bound to know, that he no more acquires a right to use the ideas, by simply buying a description of them, than he acquires a right to use a farm, by simply buying a description of it.

But perhaps it will be said that the whole object, in buying a book, is to get possession of the ideas it describes; and that the whole object, in getting possession of the ideas it describes, is to use them for our benefit, as in the case of any material commodities, which we seek to get possession of; that the author knows all this when he sells the book; and that the law will consequently imply that he consented to it; inasmuch as otherwise it would impute to him the fraud of making a sale, in form, without intending that the real benefits of the sale should be enjoyed by the purchaser.

But there is no such analogy, between material and immaterial things, as is here assumed. The possession of material things, without the right of use, is a burden, because it imposes labor, without profit. Men therefore do not desire the possession of material things, unless they have also the right of using them. But it is wholly different with ideas. The simple possession of them is necessarily a good. They are no burden. They impose no profitless labor upon the possessor. They furnish food and enjoyment for his mind, and promote its health, strength, growth, and happiness, even though he be not permitted to use them, in competition with their owner, as a means of procuring subsistence for his body.

A very large proportion of all the books, that are purchased, are purchased solely for the mental enjoyment and instruction to be obtained by reading them; and not for the purpose of reprinting them, nor of using the ideas for any pecuniary end.

There is, therefore, no ground for saying that the whole object of buying books, is to get the ideas, to be used for pecuniary purposes; and that, unless they can be so used, the author has practiced a fraud on the purchaser. The mental enjoyment and instruction, which the reading of books affords, are sufficient motives for the purchase of books, even though the right to use the ideas described in them, for pecuniary ends, be no part of the purchase.

Taking it for granted that it has now been established, that a book itself contains no ideas; that a book, and the ideas it describes, are, in fact, and in law, distinct commodities; and that the sale of the book legally implies no sale of the ideas for use (beyond the simple mental possession and enjoyment of them); I stop to anticipate an objection, viz.: It will be asked how one man can trespass upon another man's right of property, in ideas, by simply printing and selling a book, that contains no ideas?

The answer to this question is, that a book cannot be printed without using the author's ideas; inasmuch as those ideas are an indispensable guide to the work of printing a book that shall describe them. They are an indispensable guide to the work of setting the type that are to represent those ideas. It is impossible, therefore, that a book can be printed, without using the ideas which the book is to describe. This use, therefore, of an author's ideas, unless with his consent, expressed or implied, is a trespass upon his right of property in them. The use of his ideas, without his consent, in making a valuable book, is as much a trespass upon his right of property in those ideas, as the use of a man's printing press, without his consent, in printing the book, would be a trespass upon the owner's right of property in the printing press.

But not merely the printing of a book, without the author's consent, is a trespass upon his right of property in his ideas, but the sale, and even the reading, of a book thus printed, is also a trespass upon the same right of property—and why? Because the right of property is a right of absolute dominion. The owner of ideas, therefore, has a right to inhibit—and, where he reserves his copyright, he does inhibit—the communication of his ideas, from one mind to another, through the instrumentality of any books whatever, except such as he himself prints, or licenses to be printed. Anybody, therefore, who either sells or reads a book, not printed by the author, nor licensed by him to be printed, is an accomplice and agent in taking the author's ideas out of his control, and in communicating them through a channel or instrumentality, which he has inhibited to be used in the communication of his ideas.

So absolute is an author's right of dominion over his ideas, that he may forbid their being communicated even by the human voice, if he so please. And such prohibition would be as perfectly legal, as any other act of dominion over them.

An author may, if he please, by express contract, restrict the communication of his ideas, beyond the first purchasers of the books, which he himself prints, or licenses to be printed; and thus make it necessary for every man to buy a book, and pay tribute on it to the author, in order to become-acquainted with the ideas. And there may, perhaps often, arise cases where it would be for the interest of an author to do so. But without such an express contract, the presumption of law would be, that the purchaser of a book had the consent of the author to sell it, lend it, or dispose of it, at his pleasure, as he would any other material property; and that every one, into whose hands it should thus lawfully come, might read it.

But here another question will be raised, viz.

If a book, and the ideas it describes, are distinct commodities; and if the sale of the book do not imply the sale of any right of property in the ideas described in it, (beyond the mere possession and mental enjoyment of them;) how is it that men can ever have a right to use any of the ideas described in books, without making a special purchase of them, separately from the book?

It is important that this question be answered; because, although the productions of every man's mind are theoretically his property, yet we see that, in practice, not all, but nearly all, the ideas, that are described in books, are freely used by mankind at large, in any and every way in which they please to use them—(except the single one of reprinting the author's descriptions of them)—without making any special purchase of them from the author, separately from the purchase of the books describing them. It may seem, at first view, that this practice must be illegal. But I shall attempt to show that mankind have a legal right to use, in this way, not all, but nearly all, the ideas that are described in books. And the question now is, how can they have this right, consistently with the principles hitherto laid down in this essay?

The answer to this question is to be obtained by applying, to each case, these general rules, viz.

When an author sells a book, describing his ideas, the law presumes that he intends to retain all such of his original exclusive rights of property in them, as may be practically valuable to him; and that he intends to abandon—not to sell, but to abandon—all such of his original exclusive rights of property in them, as would not be of any value to him, if retained.

The law raises these presumptions, on his part, because they are abstractly reasonable, and conformable to the principles of action, that generally govern mankind—that is, mankind generally wish to preserve all their rights of property, that will be practically valuable to them; and they generally wish not to look after, watch over, or consequently to preserve, any rights of property, that are too insignificant to be of any practical value to them.

These rules also, when applied to ideas, are only the synonyms or equivalents of the general principles, on which the administration of justice proceeds in all cases, viz.: that the government is established and maintained for practical, and not for merely theoretical, purposes; and that it will therefore protect a man in the possession of every thing that is his, and that is of any real appreciable value to him; but that it will incur neither the trouble nor expense of protecting him in that, which, though it may be theoretically his, is of no real appreciable value to him.

This, too, is, practically speaking, all the protection, which the law can give to a man's rights of property, in any case; whether the property be material or immaterial; because the law can award no damages for the invasion of rights, unless the injury suffered be large enough to be capable of being measured by at least some legal standard of value, as a cent, a farthing, a penny, or some measure of that kind.

These principles are usually expressed by the legal maxim, de minimis non curat lex [the law takes no care of trifles;] (which maxim, by the way, implies that the law does take care of every thing that is of any real appreciable value).

The result of these principles, then, when applied to ideas, is simply this, viz.: wherever an author's exclusive rights of property in them, can be of any real appreciable value to him, the law will protect him in them; inasmuch as it will presume that he desires to retain them. But wherever his exclusive rights of property in them, can be of no real appreciable value to him, the law will not protect them; but will presume that he voluntarily abandons them.

In other words, wherever an exclusive right of use would be more profitable to the author, than a right in common with the rest of mankind, there his exclusive right is presumed to be retained. But wherever a right of use, in common with the rest of mankind, would be just as profitable to the author, as an exclusive right, there his exclusive right is presumed to be abandoned, and only a common right retained.

Now, in order to determine what exclusive rights of property, in his ideas, can be made more valuable to the author, than a common right, we must determine, in the case of each idea, or collection of ideas, what profitable use he could make of an exclusive right, over a common right; or, on the other hand, what profits he would lose, by suffering his exclusive right to become common to all. And this question is one, which, in practice, could generally be very easily settled.

In the case of the most important labor-saving inventions, for example, the exclusive right of using them, is evidently more valuable than a right in common with the rest of mankind; because an exclusive right will sell for a price in the market; whereas a common right will not. An exclusive right will also be more profitable for the inventor, if wish to use it himself, than a common right; because it will enable him to avoid competition, and thus obtain a higher price for his labor. For these reasons the law will presume, in the case of such inventions—however fully they may be described in books, and however unreservedly such books may be sold in the market—that the authors choose to retain their exclusive right in them, for purposes of labor. At the same time, perhaps, the law will not presume that the inventors retain the exclusive right to their inventions, for literary purposes—that is, for the purpose of writing books describing them—because the profits, on the sale of such books, may be insignificant; and because also it may be for the interest of the inventors to have their inventions described by others than themselves, and thus more widely advertised for sale.

Nevertheless, in the case of most of the ideas described in books, the only exclusive right, that can be of any profit to the author, over a common right, is the right of using them for literary purposes. This, therefore, is the only exclusive right, which the law will ordinarily presume that the author wishes to retain.

The ideas, described in print, may be classed—with reference to the rights retained, and the rights abandoned, by the authors—under three heads.

In the first class may be reckoned those labor-saving, and other valuable, inventions, of which the authors retain the exclusive use, for the particular purposes for which the inventions are specially designed; but of which the authors do not, ordinarily, retain the exclusive use, for literary purposes—that is, for the purpose of writing descriptions of them.

In the second class may be reckoned those ideas, of which the authors retain the exclusive use, for literary purposes, but not for any other purpose.

In the third class may be reckoned those ideas, of which the authors retain no exclusive use whatever.

But let us explain, a little more particularly, the principles of law applicable to each of these classes of ideas.

1. As an example of the first class of ideas, take the invention of the steam engine. The invention itself is of immense value, for purposes of labor; but a book, describing it, would probably yield little or no profit, as a merely literary enterprise. If, therefore, the inventor of the steam engine were to write a book, making the invention fully known to the public, the law would nevertheless presume that he reserved his exclusive right to the invention, for use as a motive power; but, at the same time, it would probably presume that he abandoned his exclusive right to it, for literary purposes; and that he was willing it should be freely written about, by all who might choose to write about it. And even if other men should reprint his own description of it, without his consent, very likely the law would not say that any wrong had been done him; but rather a benefit, inasmuch as his invention would thus be more widely advertised, for sale, than it otherwise would be.

But if any other man, than the inventor, were to write a book describing the steam engine, the law would most likely presume that he wrote it solely as a literary enterprise; and that he therefore wished to retain his exclusive right of property in it.

2. In the second class of ideas—those, in which the authors retain an exclusive right, for literary purposes, but not for any other use—may be reckoned an infinite number of ideas, that are really useful to mankind, as guides for their conduct, under various circumstances in life; but which, nevertheless, have singly no appreciable market value, for use. Take, for example, the ideas, that the earth is a globe; that it turns on its axis; that it revolves round the sun; that honesty is the best policy; that industry and economy are the roads to wealth; that certain kinds of labor are injurious to the health; that certain kinds of food are more nutritious than others; that certain diseases are contagious, and others not; that certain animals are untamable and dangerous; that other animals are harmless, susceptible of being domesticated, and made subservient to the uses of man; that certain systems of philosophy and religion have more truth in them than others; and an infinite number of other ideas, which are valuable to mankind for use; but which, nevertheless, if offered for sale singly in the market, would not bring a farthing apiece, from one man in a thousand.

The only way, then, in which any exclusive property, in ideas of this kind, can be made valuable to the authors, is by using them for literary purposes, instead of attempting to sell the ideas themselves singly for use.

Since, then, this right to use one's ideas, of this kind, for literary purposes, is the only exclusive right of property, that can be of any practical value to the author, it is the only exclusive right that the law will presume that he intends, or desires, to retain, when he sells a book describing them.

This exclusive right of using ideas for literary purposes, is what we call the copyright. And this is the only exclusive right of property, which authors usually retain, or wish to retain, in the ideas they describe in their books.

But, because a man has the exclusive right of using his own original ideas, for literary purposes, it must not be inferred that authors have any exclusive right of property of this kind, except in those particular ideas, which they themselves originate. Now it is only a very few of the leading, primary, and most important ideas, described in books, that are original with the authors of the books; inasmuch as the elementary truths, in nearly all departments of knowledge, have been long known to mankind. An author's originality is, therefore, generally confined to secondary and subsidiary ideas, such as the combination, arrangement, and application of the leading or elementary ideas, and the style of the composition describing them. And it is only in these original ideas of his own, that the law gives him a copyright, or any exclusive property.

3. Among the examples of the third class of ideas—in which no exclusive right whatever is retained—may be reckoned a large proportion of the ideas, which appear in newspapers; especially the accounts of passing events, and comments thereon; which ideas have an interest to-day, but will be stale to-morrow; and an exclusive right in them will never be of any appreciable value to the author, either for the purpose of being reprinted, or for any other use. In this case the law presumes that the author retains no exclusive right of property in them; simply because such exclusive right would be of no practical value to him.

If, however, these ideas have any particular intellectual merit, which would add to the author's reputation, the law will presume that he wishes to retain his exclusive right of property in them, so far as is necessary to secure to himself the reputation of authorship, even though no direct pecuniary advantage is to be derived from them. The law, therefore, will require that those, who reprint such ideas, should ascribe them to the true author, instead of printing them as their own. Of course this requirement applies only to such ideas, as have such an essential and important merit, as the authors may reasonably desire the credit of. It would not apply to ideas too trivial to be worthy of a reasonable man's consideration. To such, the principle, that the law does not take care of trifles, would apply.

I shall now take it for granted, that it has been sufficiently shown, that a book, and the ideas described in it, are, in fact, and in law, distinct commodities; that the sale of the former implies no sale of any right of property in the latter, beyond the mere possession and mental enjoyment of them; that, with these exceptions, the law presumes that an author desires to retain his exclusive right in all his original ideas, for all purposes whatsoever, for which such exclusive right will have an appreciable value, pecuniarily or otherwise, over a right in common with the rest of mankind.

This presumption of law, in favor of the author, arises, without any special notice being given, in the book, that he wishes to retain his copyright, or any other exclusive right, in the ideas described. It arises, in the case of ideas, on the same principles, and for the same reasons, as in the case of material property, viz.: that the ideas are the products of labor; that they are naturally the property of the producer; and that it is as unreasonable to presume that he would gratuitously part with any valuable rights in them, as it is that he would gratuitously part with any equally valuable rights in his material property.

It is not legally necessary, therefore, that an author should give notice, in his book, that he retains his copyright, or any other right in the ideas described. Indeed it might, in some cases, be dangerous to give the notice "copyright reserved;" that is, in cases where still other rights, than the copyright, were intended to be reserved; because such notice, unaccompanied by any other special reservation, might imply that no other rights, than the copyright, were reserved.

But although it might be dangerous to give notice, simply of a reservation of "copyright," where still other rights were intended to be reserved—as in the case of books describing valuable mechanical inventions, and also in the case of dramatic and musical compositions, where the right of performing the pieces was intended to be reserved—it might, nevertheless, be highly judicious, to give notice of the reservation, both of the copyright, and of all other rights intended to be reserved, in order to guard against any presumption of abandonment, in doubtful cases, against the will of the author.

Taking it for granted that the question, Whether the sale of a book unreservedly, implies a sale, for use, of the ideas described in it? has now been sufficiently answered, I proceed to answer another question, very similar in character and importance, to wit: Whether if an inventor make an unreserved sale of a machine, constructed in accordance with his invention, such sale will include the sale of a right to construct other similar machines? or only a right to use the particular machine sold?

It will be seen at once that much of the same reasoning, that is applicable to books, and the ideas described in them, is applicable also to machines, and the ideas, after which they are constructed. For example, the machine, and the idea, after which it is constructed, are, in fact and in law, separate and distinct commodities; as much so as are a book, and the ideas described in it. The machine does not literally contain the idea, after which it was constructed; although we are in the habit of speaking of machines in this manner. The idea does not exist in the machine; it exists only in the mind. The machine consists only of wood, iron, and other corporeal substances. The forms and shapes, given to those substances, are only effects, produced upon them by a combination of causes, to wit, the idea of the inventor, and the physical labor of the machinist; just as the order, arrangement, and collocation of the printed letters in a book, are effects produced by a combination of causes, to wit, the ideas of the author, and the physical labor of the printer. In both cases—that of a machine, and that of a book—we can ascertain the nature of the causes, (that is, the ideas, and the physical labor,) by an examination of their effects. But the causes and their effects are not, therefore identical. They are, in fact and in law, distinct entities; as much so as are any other causes and their effects. The machine, too, as a whole—that is, the wood, iron, or other corporeal substances, with the effects produced upon them, or the shapes given to them, by the idea of the inventor and the labor of the machinist—is clearly, in fact and in law, a distinct entity from the idea of the inventor, which can exist only in the mind. And the sale of the machine, therefore, implies no sale of the inventor's idea, any farther or otherwise than this, to wit. The sale of the machine implies a right to use it; and the right to use it, implies a right to use the idea of the inventor, so far as it may be necessary to use it, in order to use the machine; but no farther.

The same question, in substance, may now be asked, in regard to a machine, that was before suggested in regard to a book, viz.: If a machine, and the inventor's idea, after which it was constructed, be, in fact, and in law, distinct commodities; and if the machine do not literally contain the inventor's idea; how can his rights of property, in that idea, be trespassed upon, by another person, in constructing or using a similar machine—that is, a machine which does not contain any idea whatever?

The answer is the same as in the case of the book, viz.: that, although the machine do not literally contain the inventor's idea, yet the machine cannot be constructed without using his idea. That idea is an indispensable guide to the construction of the machine. And this use of the inventor's idea, without his consent, is a violation of his rights of property in it.

So, also, in operating a machine, the operator uses the inventor's idea; for he designs and endeavors to produce the same results, as those intended by the inventor, and by the same process, as that devised by the inventor. This, therefore, is a use of the inventor's idea, and is consequently a trespass upon his rights.

The same principles apply to sculpture, painting, drawing, &c. A statute, and the design after which it was sculptured, are distinct commodities; and the sale of the statute does not convey any right to use the sculptor's design, for the purpose of making a copy. The same is true of paintings and drawings, the designs of which can be made of sufficient practical value to the authors, to be entitled to be recognized, by law, as objects of private property.

It is not legally necessary to give notice, on a machine, that the invention is reserved; because, if the invention be such, as that the exclusive use of it will be of any really appreciable value to the author, every body is bound to presume that it is reserved. But where the fact of value is at all doubtful, it may be of utility to give the notice, in order to guard against the doubt.

Chronology

November 30, 1854 :
Part 1, Chapter 4 -- Publication.

January 09, 2020 11:03:00 :
Part 1, Chapter 4 -- Added to http://www.RevoltLib.com.

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