To the Editor of Liberty:

In a letter I sent you for publication, but which was too late for insertion, I made substantially the same points as Mr. Yarros against your copyright argument. As I am not yet convinced, I take your answer to Yarros as covering all my difficulties, and I maintain that copyright is not a grant of monopoly to ideas, but that it is a property right to the method of working out or actualizing an idea. But, as you say that the way of working out an idea—as in literary matters—or of actualizing it—as in a mechanical device—is itself an idea, and comes under the general law of no property in ideas, I will take it at that, and ask: Why no property in ideas? Surely I have a right to my own ideas. True, it may be difficult to prove that the idea is solely mine, and that no other human being could create such an idea. Your idea seems to be that ideas are like objective realities,—pearls or planets, for instance,—and that the discovering them is only an accident of time or place and person; that, being latent or hidden away, a man discovers an idea as he discovers a gold mine. I maintain that ideas are created, or invented, and, having created or invented them, I have as much right to my ideas as to my hat, whether I wear it in public or in private, and under equity I should be protected in the possession of them. To prove, though, that an idea is mine exclusively, I have to prove that another idea, so similar to mine that it is impossible to distinguish them, was not created by the claimant, but was copied from mine. How am I to do that?

You say that to discuss degrees of possibility or probability is to shoot wide of the mark, and that the question has to be decided in accordance with some general principle. But if the general principle is no property in ideas, then that principle needs establishing, and you have not convinced me of that. The degree of possibility or probability seems to me quite pertinent. I don’t think that a believer in literary property should be called upon to prove the logical, inherent, intrinsic impossibility that his work can be any other than his; it is enough to prove the more relative proposition that it is highly improbable and, according to the law of chance, almost impossible, that the work originated with anybody else. If a man has to maintain the abstract proposition of the logical impossibility of a counter proposition, then he can hold no property of any kind, or reclaim any property that had been stolen from him. I could steal Millet’s Angelus, and, if caught in possession of it, could challenge the owner to prove the logical impossibility of my having painted it myself, and all the experts in the world could not gainsay me. I believe logicians have failed to disprove the logical impossibility of a hare overtaking a tortoise if the tortoise gets a slight start; and, as an abstract matter, we can logically prove nothing,—not even our own existence. Certain it is that many fundamental assumptions of science cannot logically be proven, yet we speak of scientific truth.

But if I have to prove the relative improbability of an idea being original in another,—using the word idea as you have used it,—and if I can succeed in doing so, I fail to see where I violate the equal rights of another in my being protected in possession of what is mine and never was another’s.

If I adorn and improve my piece of vacant land in such a fashion as could not have occurred to any other human being, it seems to me that no injustice is done to another who would like to copy my idea, that he be compelled to seek my permission. It is not enough for the pirate to fall back on the abstract proposition of the intrinsic, inherent possibility of the idea being his; he must meet me on common ground and prove that there is nothing highly improbable in his creating the idea independent of me, before he can assert his equal right to the adornment. In the matter of patents the originality of an idea is impossible to prove. The history of inventions proves this, and the patent law is unjust in that it grants patents on account of priority of invention and does not even trouble itself as to originality. But in the matter of copyright the thing is entirely different. As Mr. Yarros says, no two men ever wrote a poem or an essay exactly alike. Some bold plagiarists have been detected, but the idea of falling back on the logical possibility of the work being their own has never to my knowledge been taken. There is presumptive evidence that George got the plan of his work from Patrick Dove; had George transcribed ever so short a chapter complete, even his most ardent friend could have no doubt of George’s dishonesty.

I see no distinction worth noting between the public exhibition of literary property and the private exhibition of the same. According to that theory, if a thief surreptitiously entered Spencer’s study and copied one of his books and sold it to a publisher as original, Spencer would have no redress but to persecute the intruder—if he could find him—for trespass.

Of course I am not committed to present copyright laws by believing in literary property. And as to the practical results, whether literary property would be sold at cost or not, etc., that is a separate question.

Yours, etc.,

A. H. Simpson

The matter of the discovery of ideas and much else that Mr. Simpson touches upon is answered in my comments on Mr. Yarros’s article in this issue, and it would be a waste to go over the same ground twice. Still, there are a few points that need separate attention. In discussing the propriety of considering degrees of probability, Mr. Simpson fails to distinguish between the weighing of evidence and the framing of laws. The question of probability rightly enters into the former, but not into the latter. A man on trial for stealing the Angelus, should he make the defence supposed by Mr. Simpson, would have his evidence weighed against the opposing evidence as a question of fact, but if the law against theft were so framed as to deprive him of the right to make such defence, it would be a very unjust law. Now that is precisely what the law of copyright does. It denies in advance the possibility that the so-called pirate could have accomplished the work independently, and, worse still, declares that, whether he did or not, he is in either case a pirate in the eyes of the law, against whom the owner of the copyright must be protected.

Again: the admitted uncertainty of human knowledge does not deprive us of a basis for the classification of such knowledge as we have. One category of such knowledge is the logically certain. The fundamental propositions of mathematics may be untrue, but, so far as we can see, there is no logical escape from the demonstration of a problem in Euclid. But if any one were to affirm that, because it has been observed that in foggy weather the number of suicides tends to increase, there would necessarily be more suicides during the fog of today than there were during the sunshine of yesterday, we should answer him that it was simply a matter of probability, with no logical necessity about it. No amount of sceptical philosophy (though I, who say it, am a sceptic) can wipe out this practical distinction between the logically certain and the merely probable.

Again: there is no issue between the pirate and Mr. Simpson. The issue is between the people and Mr. Simpson. No pirate has appeared. But Mr. Simpson says to the people: I have an idea, and I am afraid some pirate will steal it. Will you not make a law to stop any such act? The people answer: Such an act might deprive one of us from getting any benefit from the idea if he should discover it independently, and would in any event compel us to pay you for the idea nine-tenths of whatever benefit it may prove to us. You must at least show us that it would be impossible for any one else to ever discover it. But how am I to do that? piteously asks Mr. Simpson. And the hard-hearted people answer: That’s none of our concern; we can’t be expected to cut ourselves off for all time from the benefits of a fact of nature simply to give you a security against competition which no other laborers enjoy.

Again, and this time finally: the distinction between publication and private expression involves no such consequences as Mr. Simpson supposes. Whatever advantages privacy carries with it must be made good by any one who invades that privacy.

T.