Property in Ideas and Equal Liberty.
Let me begin this third and probably final contribution to the copyright controversy by dissipating the misunderstanding in regard to the alleged charge of evasion. Mr. Tucker has very properly refused to believe that I really meant to attribute to him that despicable pride of intellect which prompts evasion and shuffling. I do not attribute that quality to him, and the wordevadewas illegitimate, as I intended to say no more than that he had ignored an argument which he could not have failed to observe was advanced by me as decisive. I am glad that he does not suppose me capable of deliberately charging him with evasion, since such a charge would argue an unfair as well as unintelligent appreciation on my part of his character and logical insight.
I am afraid, however, that it will be found to be no mere inaccuracy of expression which furnishes me with a basis for a complaint against Mr. Tucker’s treatment of my humble self. His remark that one remarkable feature of my last article is the number of points and considerations neglected in it can have no purpose and no significance unless it is calculated to suggest to the reader that the points neglected are to be considered points settled in Mr. Tucker’s favor and that my silence is to be viewed as equivalent to admission of defeat. If I am correct, then I submit that Mr. Tucker overstepped the limits of fair and honorable warfare when he stooped to indulge in that verbal thrust. Knowing as he did that the points which I neglected were not essential to the solution of the central issue, he had no right to attempt to make capital out of that by no meansremarkable feature.If all controversialists were to insist on carrying to the end of the discussion of each and every side issue or subordinate point of disagreement, no controversy would ever come to a conclusion. This copyright controversy has brought to the surface many minor differences between Mr. Tucker and myself which no doubt might prove interesting subjects for discussion. But the main issue is not affected by them, and I propose to ignore them for the time being. I feel that my position on the main question is so impregnable that I can afford to let all the minor issues rest under the cloud of uncertainty.
Mr. Tucker will not deny that, if I can successfully establish the claim that thegeneral principleis on my side, then, no matter how numerous and how serious the practical difficulties in the way of the equitable application of the principle may be, the verdict must be in favor of copyright. What he does deny, and very strenuously and confidently, is that thegeneral principleis on my side, and he claims to destroy the force of my reasoning by pointing out a fallacy in Spencer’s statement of the general principle. But I can easily show that there is no fallacy in Spencer’s statement, and that Mr. Tucker has simply failed to comprehend it. The general principle is the principle of equal liberty, and the right to property, whether in the produce of the hand or the brain, is a corollary to that principle. The man who has discovered or elaborated from acquired facts a new idea has the right to use that idea to his private advantage. Whether he uses it secretly or openly, he has the right to a monopoly of its use. The right to privacy which Mr. Tucker so persistently obtrudes upon us has nothing to do with the question of property in the produce of the brain. The argument thatideas are there to be foundis, as I have said, too silly to need refutation. The only question to decide is whether property in ideas is negatived by the principle of equal liberty.From the moment a patent or copyright is granted,says Mr. Tucker,no 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.Whether this is true or not depends altogether on the sort of patent or copyright the man is granted. In spite of my repeated warning against confounding my defence of patent and copyright with the present laws and legal principles governing these relations, Mr. Tucker appears to hold me responsible for the injustice generated by legality. Suppose that, in accordance with the law of justice, we recognize a man’s absolute right of property in his invention or literary production, while warning him that no infringement on the equal right of others to discover or elaborate and exploit a similar thing will be allowed. As long as no competitor appears, the man, if he sells copies of his book, violates nobody’s right. The abandonment of secrecy by him does not justify us in stealing his property.  The fact that Spencer has published his works does not justify me in republishing them. Can Mr. Tucker show that a denial of his or my right to republish Spencer’s works is a denial of our equal liberty to acquire the facts, elaborate the ideas, and publish our own works? Of course not. Then, I repeat, as long as no competitor appears, Spencer’s right of absolute property in his works may be recognized without a denial of the principle of equal liberty. There is no leap, then, from the recognition of Spencer’s right to use his ideas secretly to the recognition of his right of private property in his books. Now, suppose another man appears with a book in many or all respects identical with one of Spencer’s. The question arises: is this man a thief, or has he really written this book and stolen nothing from Spencer? This question must be decided before a jury of experts, or before an ordinary jury on the testimony of experts. If the man is proved a thief, he is punished, and the right to sell the book is denied him. If juries disagree, or the man is proved honest and the real author of the book, he is permitted to compete with Spencer. Again justice is satisfied, and still, as before, no third man has a right to publish and sell either of the books.
So far, then, as thegeneral principleis concerned, property in ideas has the same sanction as property in material things. In no case does the author or inventor who has the monopoly of the use or sale of his invention or discovery infringe the equal right of others. Other men, provided they can prove to the satisfaction of a jury that the things they claim as the products of their own labor are really such, have the right to use their ideas or things for their private advantage, secretly or publicly. Only those are debarred from using the ideas who either make no claim to authorship at all or who, having made the claim, are convicted of falsehood and robbery by juries.
But the reason why Spencer, without beingabsurdandcontradictory,introduces his limitation of the right to property in ideas is that in many cases it is impossible to prove the claim of originality. Thegeneral principleis clear, but its application is found to be difficult. It is deemed expedient, therefore, to qualify an inventor’s right of property, and allow him a temporary instead of a perpetual monopoly. Where absolute justice cannot be had, relative justice is sought to be obtained. Spencer does not hold that property in ideas abridges others’ liberty of action; he merely admits that it is often impossible for honest men to prove their titles to their own property, and considers it advisable to remedy the injustice that the claimants would suffer if the protectors of the first inventor’s title insisted on convincing evidence, by abridging the first inventor’s right. Should it become possible to decide the claims of all competitors in all cases, Spencer would withdraw his qualification and adhere to the principle of absolute property in ideas.
Here it becomes clear that, holding as I do that there is no tendency for any form of literary expression to be reproduced by independent writers and that the practical difficulties that embarrass us in the case of inventors are conspicuously absent in the case of authors, I cannot follow Spencer in his attempt to abridge the right of authors to their literary works. I see no reason for violating thegeneral principlein this case. Here, I say, absolute justice, not merely relative justice, may be had. To be sure, Mr. Tucker denies the logical impossibility of two men being sufficiently alike to write substantially the same book. He himself, he tells us, has known men closely resembling each other in physical, mental, and moral traits and qualities. But this, instead of being damaging to my position, powerfully tells against Mr. Tucker himself. For, if two such men should appear before a jury, and the jury should conclude that it is more reasonable to suppose them capable of producing books substantially alike than books widely different, the right of the second claimant would be recognized and justice secured. While I still maintain that no jury would ever be called to decide such a case, and deny Mr. Tucker’sconfidentstatement thatsubstantial similarityhas not infrequently occurred, I am willing to assume that he is right and appeal to intelligent readers to say whether it would be difficult for a jury to distinguish between truth and imposture in such a case. I am confident it would not be difficult, but very easy.
I think I have succeeded in showing that thegeneral principleis on my side, that property in ideas is logically deduced by Spencer from the principle of equal liberty, and that only certain practical difficulties in the way of the application of the principle render it expedient to abridge this right in certain cases.
When Mr. Yarros charged me with evasion, I expressed my confidence that his words meant more than he meant, and his readiness to alter them shows that my confidence was justified. But when I use language which Mr. Yarros construes as an imputation upon him, he is afraid that I mean more than my words mean, or, if not that, he at least insists that my words necessarily mean something which they do not mean at all. There is no mistaking the meaning of the word evasion as used in discussion; it involves a contemptible motive. But the words remarkable feature may mean many things. If Mr. Yarros thinks they can mean but one thing, he is the victim of a philological error. If he thinks they may mean many things, but in this instance were intended to mean a thing dishonorable to him, he shows a readiness to distrust me under circumstances less suspicious on their face than those under which I refused to distrust him. Now let me explain my purpose in using the words complained of. Knowing that the readers, absorbed in the main points of Mr. Yarros’s second article, were less likely than I to remark the dropping of the subordinate considerations originally introduced by him and met by me, I called their attention to it as remarkable. I wanted them to notice that my arguments on the secondary issues had not been overthrown, no matter whether Mr. Yarros could overthrow them or not. And I hoped also, by calling attention to the matter, to lead Mr. Yarros to change this tacit admission that the now neglected issues are secondary into an explicit admission, which might have a salutary effect on those of my opponents who have paid less heed than he to my disposition to narrow the debate down to essentials. That hope has been realized, at least so far as obtaining the admission is concerned.
Though Mr. Yarros withdraws the word evade, he still says (or does not unsay what he
intended to say) that I ignored an argument which I could not have failed to observe was advanced by him as decisive. This, too, is incorrect. His original argument was that it is beyond all possibility that the writings of two men should ever be alike, because no two men are mentally and morally alike. I did not ignore this, but met it as I understood it (and as I now understand his original words), never dreaming that he meant to declare that differences of intellect make impossible that duplication of literary form which mere chance does not exclude. When, from his second article, I gathered his real meaning, I hastened to answer him again, and now, at the risk of repeating my offence, I must once more point out as remarkable the entire neglect of my second answer, made to an argument this time not secondary, but
advanced as decisive. Not that I intend more than before to hint that Mr. Yarros admits error on his part. I simply note the phenomenon, without attempting to fathom motives. I have no doubt that Mr. Yarros has a perfectly honorable reason for his silence. But until that silence is broken, it remains demonstrated to my satisfaction that an intelligent man who had never heard of the play of Hamlet would be millions of times more likely to reproduce that play than the letters that compose it would be likely, if tossed into the air, to reproduce it by chance in falling to the ground.
Mr. Yarros rightly thinks I will not deny that, if he can successfully establish the claim that the general principle is on his side, then, no matter how numerous and how serious the practical difficulties in the way of the equitable application of the principle may be, the verdict must be in favor of copyright. But I have to remind Mr. Yarros, as I have had to remind other opponents in the past, of the immortal words of Cap’n Cuttle that Mr. Yarros and Mr. Spencer prove (as they think) that property in ideas is consistent with the general principle of equal liberty, only to find the next minute that they cannot make property in ideas a reality without violating the principle of equal liberty; in view of which
practical difficulty they kindly consent to violate it only for a little while,—in each case for some fifty years or so. We, who are violated, appreciate their moderation in tyranny, but we really must decline to abandon our liberty even for so short a time. The truth is that what is here called a
practical difficulty is a theoretical difficulty, and that the snag which property in ideas meets is the very principle of equal liberty by which it professes to sustain itself. To see this it is only necessary to read the extracts from Spencer which Mr. Yarros quoted and endorsed in the last issue of Liberty. And my view of those extracts suddenly receives endorsement from an unexpected quarter. I am not in the habit of buttressing my opinions with those of others, but when a man decides in my favor on a point where naturally he would have a two-fold bias against me, it is at least interesting to quote the corroboration. I refer to the editor of Today, who, in his own paper, has just taken a hand in this discussion. He holds to property in ideas as firmly as I oppose it. Here is the first ground of his bias: his tendency would be to disagree with anything that I might say on the subject. The second ground of bias is found in his attitude toward Spencer, which is not far removed from that
brute admiration which Victor Hugo confessed for Shakspeare; he will decide against Spencer only when, as an honest man, he absolutely must. What, then, does this close student of Spencer, this believer in property in ideas, say of these extracts from Spencer upon which Mr. Yarros relies?
Let me begin, he says,
by admitting that Spencer’s qualification of the absolute right of property in ideas is irredeemably weak. . . . It seems to me untenable, and the argument quite lacking in cogency. I believe that the right of property in ideas is too obvious to be dwelt on at all; and the right, once existing, is perpetual, and cannot be qualified by anything whatever. The position stated in the last sentence has at least the virtue of consistency,—a virtue of which neither Mr. Spencer nor Mr. Yarros can boast so far as this matter is concerned.
To the criticism on Spencer’s qualification, Mr. Yarros makes an answer which, weak as it is, I must not ignore.
Spencer, he says,
does not hold that property in ideas abridges others’ liberty of action; he merely admits that it is often impossible for honest men to prove their titles to their own property, and considers it advisable to remedy the injustice that the claimants would suffer if the protectors of the first inventor’s title insisted on convincing evidence, by abridging the first inventor’s right. This is merely Mr. Yarros’s interpretation of Mr. Spencer’s language. I see no evidence that the interpretation is correct. On the contrary, Mr. Spencer could not imagine for a moment that the
claimants (as Mr. Yarros wrongly calls the alleged infringers, the claimant in law being the complainant,—that is, the man whose property is said to have been stolen),—Mr. Spencer could not imagine, I say, that the
claimants would suffer from being called on for convincing evidence. Bless your innocent soul, Mr. Yarros! fortunately Mr. Spencer has not yet thrown overboard, as you have, and as the editor of Today has (as appears later in his article), that good old rule of evidence that
a claim must be proved by him who makes it, not disproved by him against whom it is made (the quotation is from Spencer himself). From the moment that the copyright and patent laws cease to deny the right of competition to rivals who work out an idea independently though subsequently, the holders of copyrights and patents, whenever they prosecute for infringement, will be obliged by the most fundamental rules of evidence to prove that the alleged infringers are not independent inventors and authors. Unless this is proved, the defendants will be held innocent. I do not believe that Spencer ever entertained for a moment the thought of submitting patents and copyrights to juries on any other questions than those of priority of invention and identity of idea. He would know full well that to go to a jury on a question of independence of invention or authorship, with the burden of proof on the complainant as would be necessary (for to abandon this rule of evidence would result virtually in the abandonment of courts and juries altogether), would mean sure victory for the defendant. Now, the patents and copyrights that Spencer believes in are no platonic affairs, the virility gone out of them; they live but a term of years, to be sure, but they are vigorous while they last. Only such patents and copyrights do the monopolists want, only such do the friends of freedom fear. As for the castrated copyrights that Mr. Yarros and the editor of Today propose, if I were to look at the practical side simply, barring the putting the burden of proof on the defendant:
Have them and welcome! for I know that it is well-nigh impossible to prove the cribbing of an idea.
But I do not take the practical view only. As a friend of equal liberty, I cannot endure the monopolist, even though he be a eunuch. Theoretically he has an elixir in the opportunity given him to prove that which is practically incapable of proof. And  theoretically the sterility is transferred to all other persons, from whom the opportunity is taken of exploiting at a competitive price the fact or truth of nature which, even under this practically barren copyright, they can, theoretically, enjoy only at a monopoly price. For it is an idle mockery to say that people would still have the liberty to discover for themselves. No man living in the civilized world has the liberty to discover the principle of the steam-engine. Having seen the steam-engine, he is powerless to discover it (except by simply understanding it, to use the word in the sense in which Mr. Lloyd uses it in another column). This being the case, and the first inventor of the steam-engine having virtually rendered all other people powerless to invent it, a patent given to him puts the entire world at his mercy by enabling him to deprive it of its chief motive-power if he chooses, or, if he prefers, to sell it to the world at the price of a permanent income for himself and his heirs amounting to a fraction less than the annual extra product due to the use of steam. The same is true in principle, though in less degree, of books and their authors. And here I may note that the editor of Today agrees with Spencer and myself against Mr. Yarros that
a collocation of words is a discovery the same as any other discovery.
It is useless to traverse again the ground which I have been over already so many times in showing that ideas, or rather the truths and facts of which ideas are conceptions, are not produced by the brain, but exist independently of man. My arguments on this point seem plain and clear to me; to Mr. Yarros they seem
too silly to need refutation. The deadlock ends all debate.
The fact which Mr. Lloyd presents so clearly, and which I refer to above,—that perpetual copyright warrants the wanton destruction of the most valuable treasures the world possesses,—is one that I had been holding in reserve as the final and triumphant reductio ad absurdum of all theories of perpetual property in ideas. The simple and indisputable truth that, if perpetual copyright existed, Spencer’s heirs, if they chanced to be Roman Catholics for instance, might, at the bidding of the Pope, burn all his books after his death, melt the plates, and forever forbid the reprinting of the works, shows in itself, most overwhelmingly, that perpetual property in ideas is one of the most stupendous absurdities that ever confused the minds of intelligent men.
I hope the editor of Today will forgive me for making no special reply to his article. In this answer to Mr. Yarros I have been able incidentally to meet Today’s arguments also, in spite of the fact that in some important particulars Mr. Yarros and Today are at variance. Thus far this has been a most interesting battle. To me I am sure it will prove a useful one, whether I win it or lose it. To be forced to combat single-handed against five such gladiators as Yarros, Simpson, Donisthorpe, Fuller, and Bilgram develops one’s faculties immensely. It seems like discouraging odds, but in purely intellectual campaigns Napoleon’s maxim fails; God isn’t always with the big battalions. Besides, I am no longer alone; Lloyd has come valiantly to my rescue. He is a host in himself, and with him at my side I have no notion of retreating.