The “General Principle” and Copyright.
I am astonished at the weakness and shadowiness of Mr. Tucker’s arguments in support of what he insists is the Anarchistic view of copyright, and, returning to the subject, I will proceed to state my grounds for disputing Mr. Tucker’s position and holding it inconsistent with the fundamental principles of Anarchism.
Mr. Tucker and I believe in the principle of equal liberty, and we believe in private property, which is a corollary from the principle of equal liberty. We believe that the laborer is entitled to his full product. Now, in my opinion,a man’s right to the produce of his brain is equally valid with the right to the produce of his hands.I wish it distinctly understood that, far from regarding (with Mr. Tucker) George’s argument against patent rights asconclusive, unanswerable,I regard it as too silly to be deserving of notice. The metaphysical talk about the potential existence of ideas and their beingthere to be foundis to me meaningless jargon.(1) My reasons for opposing the absolute right of property in inventions are totally different. I take substantially the Spencerian view of the subject, diverging from Spencer only in holding that labor expended on how to state an idea is labor of production and not labor of discovery, in which opinion I happen to coincide with George, much to my discomfort. I find no attempt in Mr. Tucker’s reply to prove that he is correct in holding that the method of expressing an idea is itself an idea, and though I am not now able to prove that it is not, yet my very strong impression to that effect cannot be overcome by the mere assertion of the opposite view. I admit that Mr. Tucker was right in his criticism of George, for therein he took George’s own test and triumphantly showed it to establish that what George arbitrarily chose to constitute an exception was really no exception at all. When, however, Mr. Tucker will bear in mind that I decline to subject my position to the Georgian test, he will certainly appreciate the necessity of furnishing some other proof of his proposition. (2)
I have referred to the Spencerian view of a man’s right to the produce of his brain. Now, what is that view? We will listen to Spencer.It is tolerably self-evident that no violation of the law of equal freedom is committed in the acquisition of knowledge—that knowledge, at least, which is open to all. A man may read, hear, and observe to as great an extent as he pleases, without in the least diminishing the liberty of others to do the like—in fact, without affecting the condition of others in any way. It is clear, too, that the knowledge thus obtained may be digested, reorganized, or combined afresh, and new knowledge educed from it by its possessor, without the rights of his fellows being thereby trespassed upon. (3) And it is further manifest that the moral law permits a man who has by his intellectual labor obtained such new knowledge to keep it for his own exclusive use or claim it has private property. (4) He who does this in no degree exceeds the prescribed limits of individual freedom. He abridges no one’s liberty of action. Every other person retains as much scope for thought and deed as before. And each is free to acquire the same facts—to elaborate from them, if he can, the same new ideas—and in a similar manner employ those new ideas for his private advantage. (5) Seeing, therefore, that a man may claim the exclusive use of his original ideas without overstepping the boundaries of equal freedom, it follows that he has a right so to claim them; or, in other words, such ideas are his property.
At first sight this view seems to imply the right of perpetual property in ideas. But, as Spencer goes on to say,in consequence of the probability, or perhaps we may say the certainty, that the causes leading to the evolution of a new idea in our mind will eventually produce a like result in some other mind, the claim above set forth must not be admitted without limitation. Many have remarked the tendency that exists for an important invention or discovery to be made by independent investigators nearly at the same time. There is nothing really mysterious in this. A certain state of knowledge, a recent advancement in science, the occurrence of some new social want—these form the conditions under which minds of similar characters are stimulated to like trains of thought, ending, as they are prone to do, in the same result. Such being the fact, there arises a qualification to the right of property in ideas, which it seems difficult, and even impossible, to specify definitely. The laws of patent and copyright express this qualification by confining the inventor’s or author’s privilege within a certain term of years. But in what way the length of that term may be found with correctness there is no saying. In the meantime, as already pointed out, such a difficulty does not in the least militate against the right itself.(6)
I beg to call Mr. Tucker’s attention to this qualification and the reason given for its introduction. He will realize his error in excluding discussion ofgeneral principleis concerned, property in ideas cannot be denied without challenging the right to property in the produce of one’s hands. If we are to follow the general principle and refuse to qualify it according as the discussion of degrees of probability or possibility directs and prompts, then we are bound to declare, not against patent rights and copyright, but in favor of absolute property in ideas. It is only the difficulties in the practical application of the general principle that necessitate the abridgment and limitation of the right of property in this particular sphere. It is only becausemany have remarked the tendency that exists for an important invention or discovery to be made by independent investigators nearly at the same time,thatthere arises a qualification to the right of property in ideasand that I am able to echo Mr. Tucker’s declaration in regard to the excessive silliness of those who do believe in the perpetual and unlimited right to property in ideas. Were there no such tendency to take account of, I should certainly favor perpetual monopoly in ideas, seeing that there is no argument against such a monopoly which does not apply equally well to monopoly in things material produced by labor.
And now we come to the point where I diverge from the Spencerian position. Spencer makes no distinction between the right to property in inventions and the right to literary property, which I do. Spencer evidently agrees with Mr. Tucker that literary expression belongs to the category of ideas, while I am strongly inclined to think that thehow to saya thing is labor of production. But whether I am right in this or not, I am certainly right in claiming that there is no tendency for any form of literary expression to be produced by independent writers. To repeat the words already used by me,it would be absurd to say thatI can discover no reason for qualifying an author’s absolute right to his literary property, the practical difficulties that embarass us in the case of inventors being here conspicuous by their absence. Mr. Tucker’s remarks upon this point fail of effect. In the first place, it is not true that I am obliged to maintain Mr. Tucker says, is already discovered. Does the experience of men present any lesson showing the necessity of limiting and qualifying an author’s right to his literary property? Certainly not. Then we should adhere to the general principle and insist on unlimited right. Perhaps future experience will show the need and justice of qualification; if so, future humanity will doubtless provide for the proper adjustment of the difficulties. But we have no justification whatever for breach of that general principle in which we pretend to believe.some man or men might, and in many cases very probably would, have (written) tomorrowwhat Spencer has written today. Instead of beingvery probable,it is simply beyond all possibility. If Spencer had not been born, it is probable that some other man or men would by this time have discovered the ideas and truths with which his name is identified; but the world would never have had Spencer’s books. The method, the style, the manner, the peculiarities of all kinds due to his physical, mental, and moral traits, these no other man might or would under any circumstances bring. . . . Since men began to write, no such occurrence has taken place as the production of two similar quatrains, or two ten-line paragraphs, by two independent men. The writings of no two men are ever alike; because no two men are mentally and morally alike, although hundreds of men hold common beliefs and have thoughts and emotions in common.
But it is not even true that Mr. Tucker hasthe addition of intellect(and moral nature)vastly increase the possibilityof reproduction or rediscovery of literary expression, but it does not even leave us the possibility afforded by chance to allow for. That addition makes that impossible which is not impossible when type is thrown into the air. (7)
I will say in conclusion that I agree with Mr. Tucker that it would be much better if art and literature could be entirely divorced from commerce, and that I look forward to a time when absolute communism shall prevail in this particular sphere; but the question is not what the remote future is likely to bring, but what the principles we recognize and advocate logically lead to or end in. What we hope for is one thing; what we are bound to defend as Anarchists—that is, champions of equal liberty—is another thing.
One remarkable feature of the above article is the number of things that are not said in it. I cannot recount them here; but I wish that every reader would turn back to Liberty of December 27, examine Mr. Yarros’s first article and my reply in connection with his present rejoinder, and note the points and considerations which he thought it worth while to advance and which I thought it worth while to refute, and which are now entirely neglected. Letting these pass, I proceed to examine the things that are said.
Yet further down Mr. Yarros declares that the principle of private property is already discovered. Now, that principle is an idea. How could that idea have been discovered if it had not existed before discovery? But to say that it so existed—that is, that it was
there to be found—is to Mr. Yarros
meaningless jargon. Ideas and principles, to be sure, being qualities and relations, have no material existence; yet we constantly speak of them, and with propriety, as existent. No man produces them. They were (most of them) before man was. That a straight line is the shortest distance between two points was as true before the discovery of the rudiments of geometry as afterward. If this is meaningless jargon to Mr. Yarros, I can only say it is fortunate that it is highly improbable (though not, as he claims, entirely impossible) that there will ever be many men with mental constitutions exactly like his own.
Mr. Yarros here, his claim is that there is work of production as distinguished from work of discovery, and that, if he should adopt George’s test of distinction between them,—namely, that work of discovery is or may be done once for all, while work of production is required afresh in the case of each particular thing,—my argument would be valid against him; but that, since he does not adopt George’s test, my argument, valid against George, is invalid against him. I confess that it did not occur to me that Mr. Yarros might see a distinction between work of discovery and work of production essentially differing from the distinction claimed by George, because the latter seemed, and still seems, to me the real distinction. But if it is not, and if Mr. Yarros has the real distinction, then, as he says, my argument against George is not necessarily good against him. Before that can be decided, however, Mr. Yarros’s distinction must first be made known, and, so far as I can find, he has nowhere stated it. He emphatically states that the two things, works of production  and work of discovery, are separate, but as to what separates them he leaves us in utter ignorance. George, on the contrary, states clearly what separates them, and I must accept his distinction until shown a better one. This distinction is my reason, or, at least, one of my reasons (though Mr. Yarros says I have not given any), for holding that the method of expressing an idea is itself an idea. It seems to me an inseparable characteristic of an idea that man’s possession of it is necessarily the result of work that is or may be done once for all, and method of expression certainly falls within that category. But even if it should be shown that method of expression is not an idea, the effect upon my position would be verbal rather than substantial, as I should have only to discard the phrase,
no property in ideas, and substitute,
no property in the results of work that is or may be done once for all.
Down to this point the sentences quoted from Spencer are not only, as he says,
tolerably self-evident, but absolutely true, undisputed, and indisputable.
Mr. Yarros’s article, is the point where the difference between his position and mine originates. I have not Spencer’s book by me, and so am not sure what he means by
the moral law. But from the context quoted I judge that he refers simply to the law of equal freedom. In that case his position is unsound. The law of equal freedom permits a man who has acquired knowledge to keep it secret and to use it secretly; but from that to recognition of it as his private property is a long, long leap. The man may keep the knowledge secret because this secrecy cannot be violated without violating that personality which, by the law of equal freedom, is inviolable. As long as the man maintains this secrecy, he will enjoy certain advantages necessarily involved with it, but when he voluntarily abandons the secrecy, he at the same time abandons the advantages. In the sentence which I am now criticising, a false inference is declared
manifest, without any logical process; the whole question is begged right here at the start.
Supposing no patent or copyright, this is true. The man who uses his knowledge secretly abridges no one’s liberty of action; and that is why the law of equal freedom permits him to do so. But from the moment a patent or copyright is granted, no other man is
free to acquire the same facts—to elaborate from them, if he can, the same new ideas—and in a similar manner to employ those new ideas for his private advantage; and that is why the law of equal freedom forbids copyrights and patents. Leaving out the last sentence of the first paragraph quoted above from Spencer, and the clause in the middle,
or claim it as his private property, I could hardly ask anything better than Spencer’s words as premises for my own conclusions. As for his conclusions from them in the sentences to which I except, they are fallacious, not to say arbitrary. They precisely fit Webster’s definition of a fallacy as
an argument, or apparent argument, which professes to be decisive of the matter at issue, while in reality it is not. Of course, then, all the conclusions which Mr. Yarros further draws from the
general principle as laid down by Spencer have no force as addressed to me, until he shall show that I am wrong in the criticism which I have just made on Spencer’s view. My reasons for claiming that the general principle is on my side and against property in ideas must first be overthrown, or else the burden of proof remains on Mr. Yarros to show the logical, inherent, intrinsic impossibility of rediscovery of literary expression. I have no call to give reasons for the abridgment of a right which I deny altogether. Nor do I see how my denial of this right, as I deduce it from the law of equal liberty, at all involves a denial of the right of property in general. This is another point that must be demonstrated before I will admit it.
It is obviously contradictory and absurd to first justify property in ideas on the ground that it does not abridge others’ liberty of action, and then, on the ground that it does abridge others’ liberty of action, to qualify it in such a way that the abridgment in each particular case shall be limited to a term of years. Such a qualification of property in ideas is a denial of property in ideas. It is an admission that such property does abridge others’ liberty of action, and therefore is inconsistent with the law of equal liberty, and therefore is untenable by Anarchists.
Mr. Yarros allows that chance considered alone admits a possibility of reproduction of literary expression, but curiously claims that the addition of intellect to chance removes this possibility. I claim, on the other hand, that such addition vastly increases this possibility, and for this reason: intellect eliminates from the possible combinations of letters and words certainly more than ninety-nine per cent. of them, as less than one per cent. of them form sentences sufficiently intelligible to be written outside the lunatic asylums. After this tremendous elimination, the law of chances still governs the relatively small remainder, for men are the product of conditions, and chance enters into the conditions that produce men just as it enters into other things. I deny the logical impossibility of two men being exactly alike, and I even assert a considerable possibility of two men being sufficiently alike to write substantially the same book. I myself have known men so closely resembling each other that only after a long and intimate acquaintance could I tell them apart, and then not readily; and this resemblance was not physical simply, but extended in the same degree to mental traits, habits of thought, tastes, aptitudes, the sound of the voice, and methods of speech. I should have been more surprised to see these two men, writing independently, produce books widely different than books substantially alike. Mr. Yarros should remember that literal reproduction is not necessary to constitute violation of copyright. Substantial similarity is sufficient, and such similarity is not only possible, but, I am confident, has not infrequently occurred. I know that in music it has often occurred. The experts claim that musical combinations, multitudinous as they are, are already well-night exhausted, and that the time is fast approaching when it will be impossible to write a new musical phrase. It would have been stupid in me to evade when facts and common sense are arrayed thus strongly on my side. But I am none the less sorry that Mr. Yarros should suppose me capable of evasion in any case. To me evasion is not only dishonesty, but dishonesty in its most revolting form. I know nothing more despicable than that pride of intellect which leads a man, professing only anxiety for the truth, to give error the appearance of truth in order to avoid the supposed humiliation of defeat. Pending further evidence, I refuse to believe that Mr. Yarros attributes this quality to me. And yet I cannot understand his use of the word
evaded, when I know that evasion makes upon him the same impression of intellectual dishonesty that it makes upon me.