Table of Contents
- Background for this article
- Moral Background
- Interpreting the Constitution
- Intentions of Copyrights
- Society by Said Interpretation
- From the Wicked Depths of Capitalism
- Creativity Might Be a Joke
- Privilege, not Right
Appendix: Letter of Thomas Jefferson to Isaac McPherson
Background for this article
Spammers are quite clever, but here’s the most borderline comment I’ve received thus far:
With havin so much content and articles do you ever run into any problems of plagorism or copyright violation?
My website has a lot of completely unique content I’ve either created myself or outsourced but it seems a lot of it is popping it up all over the web without my authorization. Do you know any solutions to help prevent content from being stolen? I’d definitely appreciate it.
I can’t really tell if this is spam or not. Usually Askimet filters out this sort of thing, but the creator was clever enough to use a personal account on another website. Notice, however, the account has been completely unused since the day they registered it, which would normally mean they only use it for one thing: spamming. Spamming is only one intention, however, and it’s quite possible they merely use this account because they don’t want their real identity exposed.
Normally, I would not respond to such a comment since I’d like a legitimate return address. However, it’s such a legitimate question that I intended to address again, as I’ve done so in previous articles, I’ll just use this comment as an excuse to write about it. Too bad the guy won’t hear about the response – I’ve deleted that comment because it was attached to a post where I didn’t want it.
If you’re a religious person, you may have pondered where the line is drawn with respect to copyrights. I cannot speak for all religions, so I’ll just cover the Christian perspective.
In the Bible, we read from Paul that we should subject ourselves to the governing authorities. The specific passage in question is Romans 13:1-7 (and I read from the RSV)
Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore, he who resists that authorities resists what God has appointed, and those who resist will incur judgment. For rulers are not a terror to good conduct, but to bad. Would you have no fear of him who is in authority? Then do what is good, and you will receive his approval, for he is God’s servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain; he is the servant of God to execute his wrath on the wrongdoer. Therefore, one must be subject, not only to avoid God’s wrath but also for the sake of conscience. … [goes on to talk about taxes]
There are several things to note about this passage. First, Paul lived in a completely different time period, before the Democratic-Republic of the U.S. and before nations restricted themselves to supreme documents called “constitutions”. In Paul’s day, governing authorities actually did believe in gods and also had unlimited political power. These days in democratic societies, power derives from the people and the government is limited by interpretations of the constitution.
There’s the funny point, which I’ll get back to: interpreting the constitution. But first, let’s finish pointing out the holes in Paul’s words from the English translation. (If we wanted to be more correct, we would have to go to the Greek, but I don’t think that’ll be necessary in this case.)
Therefore, he who resists that authorities resists what God has appointed, and those who resist will incur judgment.
People before me have already noted the catch-22 in this statement: When you’re obedience to God conflicts with obedience to your authority and vice versa (obedience to authority versus obedience to God).
If you’re still under the opinion that the government is your supreme authority and not the constitution, the interpretation of this passage is very relevant to you, especially considering that the U.S. Constitution (or any other that I know of) does not require a person to, in any way, do something that might be contrary to the will of God. Politicians, on the other hand, can make demands of people that the constitution says they cannot demand. Here, we hit a fuzzy line with the constitution, and it is here, I return to the point of constitutional interpretation.
Interpreting the Constitution
Article 1, Section 8, Clause 8 of the Constitution of the United States of America (mouthful) says this:
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.
It’s called the “Copyright Clause”, but that’s only because of the interpretation people have given it. There’s nothing in that clause that even remotely mentions art, media, computer code, or a ton of other crap people can get a copyright for.
Hence, in conclusion, the constitution does not offer protection to art, media, computer code or anything not considered a “writing” or “discovery”.
Please note, art did exist at the time. It wasn’t like it was forgotten about in this clause. In fact, the clause specifically states “science” and “useful arts”. In other words, stuff that can benefit anyone. How so? By providing them with the basic necessities for survival. If you ask people what is more important for a newly-started, rising nation, which is more important – an artist or an engineer (someone who provides something practical) – most people will say the engineer. You need engineers for tons of things. An artist? Well, they might make something nice to look at or feel or smell, but unless they are a cook, their work doesn’t feed people or provide for their shelter.
At this point, given that I abide by a strict interpretation of the U.S. Constitution, I could end my article. However, there is so much more to be said.
Intentions of Copyrights
When writing the Constitution, the Founding Fathers, by the wording Clause 8 (see above), refer to both writings and discoveries. Considering that the clause is “to promote progress in the science and “useful arts”, the mentioned “writings” are presumably scientific or concerned with the sciences or engineering. Hence, fiction is not included.
The mentioned “discoveries” are, thus, meant to be scientific or mechanical or such.
Here, we hit a peculiar point. What kinds of discoveries are “scientific”? Isn’t everything scientific? For example, one could make a science of poetry, taking into account melodic rhythms and patterns to compose a pleasant poem. One could make a science of eating cake or of numerous other things. The question “is it beneficial to someone else” will not suffice, because obviously art, poetry, and other “non-scientific” discoveries can be beneficial to people. We could then ask, “is it considered technology”? Technology should be very distinct – information or products that can be utilized to perform tasks. If this is the case, then books on computer science and even mathematics are included under Constitutional protection.
Notably, however, we must consider the full intentions of the Founding Fathers as they wrote it and not just what they meant in the text.
Consider a society in which there is no protection from copyrights or patents. All kinds of works are exploitable. In communism, the work of one individual is exploited to benefit everyone else. This, however, discourages the worker doing the most work, since they are not benefiting from doing anything more than their neighbor. In a similar manner, people whose work is not protected by copyrights do not feel as much incentive to create, to write, to invent, or to discover as much as they would should they have some profit (monetary or otherwise).
The idea that we must keep in mind, however, is that in the end, all of society should benefit. If there is too much Constitutional protection over a work, then no one but the inventor gets to enjoy the fruit of their labor. Hence, the Founding Fathers said there is a date at which protection ceases entirely, as we read in Clause 8:
… securing for limited Times …
At some point, then, the rest of society will be able to do whatever they want with the work. This is beneficial for society because it allows people to build upon the work of each other. That is the intention of the Founding Fathers: that science should build upon the contribution of numerous individuals working off of capitalistic incentive.
Society By Said Interpretation
There is some trouble with a strict interpretation of the Constitution with respect to this clause. First, as I’ve already mentioned, is “what is considered science”? The word “science” can be rather blurry since it refers merely to “study” in general. During the time of the writing of the U.S. Constitution, “science” itself was also referred to as “natural philosophy”, placing it in an even larger category of study but limiting it at least to physical (which brings up the point that study of non-physical things, such as philosophy, are not protected by the Constitution).
The second problem is a bit more troublesome. Just as science makes progress by the contributions of individuals based on capitalistic incentive, so does art. While people will always make art (for enjoyment), people will not share it as much if there is little incentive to do so. Some incentives are monetary, praise, or simply promotion. Promotion may be of a new style, product, or person, but even in these cases, there is often times some ulterior motive (NOT always, but often, at least in my experience). While promotion provides its own reward, the incentives of monetary or praise are difficult to maintain without some protection. For example, praise or popularity for a work cannot be given to the correct author or creator if the work is immediately made public domain. (Notably, even in a copyright-filled society, there is still the trouble with false representation of artists, but this is more of a consequence of digital sharing than of lack of protection.) Furthermore, a creator won’t receive as much monetary compensation, if any, if someone else can copy their work cheaply and sell it (or give it away free).
From the Wicked Depths of Capitalism
And thus it would seem that a society with copyrights is thus beneficial to society. Speaking about ours? well… yes and no. There’s a darker side of this.
Monetary incentive has been so influential that it has resulted in the taking of ideas from the inventor and putting it in the hands of corporations and money sinks and finally, into the hands of copyright trolls… at least until that was shot down (thank God).
Patent protection began (mm, maybe just got serious) with Thomas Edison (or so I’m told). He would invent something (albeit the brute force way: trying everything until something worked; very wasteful) and someone else would come along, copy his idea, and sell it cheaper (because they didn’t have to pay the upfront cost of development). I recall reading that Thomas Edison invented film for movies but kept it in secret to protect his invention. He was a clever man. When he finally got patents to protect his science, his business blossomed. He ended up having over 2000 patents in his lifetime (that seems like a laughable number for corporations, but remember, this is before the times when stupidly simple ideas like “slide to unlock” could be patented). The usefulness of patents to men like Thomas Edison was probably what the Founding Fathers had in mind.
Then along came company patents. Rather than one inventor having the patent, what if several people worked on the project? What if inventors were being paid to invent? In the former case, the patent would go to all of them, but that presents the issue of how the patented invention could be shared if any of them disagreed. In the latter case, the monetary incentive has already been provided by someone who, in turn, wants monetary incentive for having provided such incentive to inventors. Here, things get sticky. Article 1, Section 8, Clause 8, as given above, does not say how many people are to be rewarded with protection of their work. It does not specify whether such protection can be given to a company or another individual, related or unrelated, for monetary incentive or otherwise.
This lack of clarity in the Constitution has allowed for the writing of several laws and bylaws to manage the system, and it has resulted in a huge mess, as I’ve discussed elsewhere. That, combined with misuse of marketing terminology, has lead to a misunderstanding of what it means to “buy” and “sell”.
The biggest issue, however, is greed. The U.S. legal system is now plagued with companies who are not simply demanding a cease of copying of a idea or patent but are also demanding ridiculously large monetary compensation. Companies take a great deal of time to buy patents and copyrights, sometimes merely for the sole purpose of having an edge over their rival companies. Copyrights and patents have become a market item rather than a means “to promote the Progress of Science and useful Arts”.
Creativity Might Be a Joke
Two things. First, it is interesting to note how many things that are copyrighted or patented that are not creative. Patents were supposed to be rewarded to individuals who came up with something that wasn’t an obvious idea to the average inventor. For example, neither a sail boat nor an oar are patentable inventions since obviously they were used all over the world by people who had no contact with each other.
Second, all things that have been invented have been inspired. I don’t know of a single invention that people can use that doesn’t already have its origins in the physical universe. Even mathematics goes back to the adding of apples or items for sale. Hence, there is no such thing as a “new” invention in that it uses concepts never before seen on the face of the earth. Even rockets use explosions to gain lift, and explosions have been around since the beginning of the world.
What is creativity, then? Creativity is taking the things you already have and assembling them in a way that you’ve never seen before. It doesn’t require much intelligence to be creative (nothing said with respect to the desirable nature of the result), but it does take a willingness to put aside the traditional order of things in order to try out a new order that just might function as you wish. Those willing to do so are rewarded with protection over their discovery.
Privilege, not Right
Considering that God made everything, the original idea belongs to him and so does the right to all ideas. If you don’t prescribe to a theist point of view, then naturalist philosophy may tear down whatever view of rights you have and tell you that the only “rights” you have are, in fact, merely privileges granted to you by the government.
The Constitution specifically declares that there are certain “unalienable” rights that man is entitled to. Protection against the copying of an idea is not one of them, especially considering that such a privilege could not be provided if a protecting entity (such as a government) did not exist! The Ludwig von Mises Institute speaks more thoroughly on the topic of how “Intellectual Property” is actually a deceptive idea, but I’m only going to take a single quote from Thomas Jefferson to Isaac McPherson:
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 long 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 possesses the less, because every other possesses 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.
The idea being that your idea isn’t lost the moment you share it. There is no such thing as “idea theft” or “content theft” if the original idea itself has not been lost in the act of sharing, copying, or distributing.
The original letter is so well said that I’ve attached it as an appendix to this article of mine.
The title of this section is, in part, a joke. “Utopia” is man’s delusion of a world that works according to how he sees fit. Thus, that’s what this is.
In the ideal world (hahahahaha), people would:
- … respect each others wishes.
If a person wanted to show only a few people, people wouldn’t be so rude as to share it with the whole world.
- … selfishly guard ideas they share.
If a person is willing to share an idea, they wouldn’t manipulate other people in what they do with an idea.
- … support the creators.
People need incentive. It doesn’t have to be monetary, and perhaps it is merely their own inclination to create that provides incentive, as it does for many craftsman. As Jefferson observed:
… other nations have thought that these monopolies [patents and protections] 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.
- … do not falsely represent the origin of an idea.
A person doesn’t claim to be the original artist if they are, in fact, not the original artist. I would also add that credit is given to sources of inspiration.
To be honest, there is no workable compromise. Not in this world. For a time, I considered what it would be like if inventors were only rewarded with control for setting the base-sale price for their work (at most, 110% what they were charging). At first, it seems to be a fitting idea, but there would be immense resistance to its implementation and not just from those who want monetary compensation. In the end, we’re stuck with the same two dichotomies we began with: those who want full control over their work and those who want everything free. Even if you don’t fit into one of these categories, they are, no doubt, quiet loud.
In conclusion, morals themselves do not promote obedience to the copyright law that we have today, at least not word for word. However, the message in the Pauline passage is actually this: keep the peace. If you’re doing something for no good reason and it irritates someone else, stop. On the other hand, if someone doesn’t mind you copying their “copyrighted” work, then it’s just fine. If you really want a clear conscience, it only takes 5 minutes to write a polite email asking permission.
~====== Appendix =======~
Thomas Jefferson to Isaac McPherson
13 Aug. 1813Writings 13:333–35
It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while 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. 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 long 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 possesses the less, because every other possesses 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. Society may give an exclusive right to the profits arising from them, 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 anybody. 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.
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. As a member of the patent board for several years, while the law authorized a board to grant or refuse patents, I saw with what slow progress a system of general rules could be matured.
The Founders’ Constitution
Volume 3, Article 1, Section 8, Clause 8, Document 12
The University of Chicago Press
The Writings of Thomas Jefferson. Edited by Andrew A. Lipscomb and Albert Ellery Bergh. 20 vols. Washington: Thomas Jefferson Memorial Association, 1905.