The Right to Authorship.
Mr. Tucker’s Mr. Donisthorpe and Mr. Bilgram, reluctant to descend from the lofty position of a logical defender of a scientific principle and discuss with them practical results,—he takes care to keep all the practical questions constantly before my eyes, despite my entire willingness, and even anxiety, to confine the discussion to the single question whether or not property in ideas consists with the principle of equal liberty. It is quite painful for me to contemplate the awkwardness of Mr. Tucker’s present attitude. In the same issue we find him telling Mr. Bilgram that his non-use of the law of equal liberty is laughable in the extreme, and telling me (without perceiving that he creates an opportunity for me to make merry at his expense) that thefactthatperpetual copyright warrants the wanton destruction of the most valuable treasures,etc.,is the final and triumphant reductio ad absurdum of all theories of perpetual property in ideas! Is not Mr. Tucker’s own use and non-use of the law of equal liberty laughable in the extreme? Thefactreferred to, to those who consistently adhere to the law of equal liberty, is of no significance whatever. The question, as Mr. Tucker told Mr. Donisthorpe, is not whether we fancy we should be losers or gainers by copyright. The question is, what is the verdict of social science on this point, what the conclusion authorized by the law of equal liberty. We should all perish if farmers and manufacturers suddenly took a notion to destroy all their products; yet it does not occur to us to use this fact as a triumphant argument against private property in wheat, clothing, and other indispensable things.
On the main issue Mr. Tucker makes but one remark,which, weak as it is, I must not ignore.As a friend of equal liberty,he cannot endure the man who, having produced a work of genius, claims the right of absolute property in that work.It is,he cries,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. 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.But Mr. Tucker strangely loses sight of one circumstance,—namely, that the inventor or discoverer does not force anybody to examine and study his invention or discovery. Certainly the author or inventor, in publishing his idea, violates no one’s freedom. If Mr. Tucker wants to be the originator of everything he has occasion to use and enjoy in life, he is at liberty to abstain from reading and studying things. Then it will be no idle mockery to say that he will have the liberty to discover everything for himself. In stopping to read and study what others have written and produced, he voluntarily abandons his liberty to discover the things for himself. Some things, indeed, it is not necessary to study; to see them merely is enough. But all Mr. Tucker has the right to demand is that these things shall not be brought to his own private house and placed before his eyes. The stores and the streets are not his; and he has no right to say that they shall not be offered there for inspection and sale. If he chooses to enter the stores, or walk in the public street and look at the display of goods in the windows, he does so at the risk of depriving himself of the liberty of originating certain things. Not being compelled by the inventors and authors to enter stores, he cannot complain of the loss of liberty entailed by these visits.
Unless Mr. Tucker can overthrow this argument, I claim that the right to property in ideas is fully established. I claim that the position taken by me, by the editor of Today, and, as I still think (in spite of what has been urged against my interpretation of him), by Spencer, on the question of the absolute right of the author to his idea, logically follows from the law of equal liberty. Perhaps I was wrong in intimating that the second claimant (I use the word in its ordinary, not legal, sense) should be required to prove his title; it may be that thegood old ruleof holding an accused innocent until proved an aggressor by those who impeach him needs no qualification. I am not ready to express any positive opinion on the question, and am willing to discuss it. But, whatever the answer to this purely practical question, the important admission which I am endeavoring to get from Mr. Tucker is that, provided we grant every man who claims to have originated a thing the liberty to compete with a previously recognized originator of a similar thing (if a jury decides in his favor), the law of equal liberty is not violated in requiring everybody who wishes to use an idea elaborated by another, saving himself the trouble of originating it, to pay for the use of it, to the author, the price set upon it by the latter. Whether such patents and copyrights are platonic affairs or not, concerns me little. The principle alone concerns me. At some future occasion I may undertake to show that these patents and copyrights are sufficiently virile and vigorous; at present, regard for the proprieties of abstract discussion forbids my imitating Mr. Tucker and Mr. Bilgram and obscuring the question by considerations of advantage or non-advantage.
When Proudhon wrote the concluding letter in his famous discussion with Bastiat on interest, he told his opponent that three-fourths of it was written in advance of his receipt of the rejoinder to his previous letter, so well did he know what that rejoinder would be. My present answer to Mr. Yarros was not written in advance, but I can truthfully say that, when I wrote my previous answer, I foresaw that he would make precisely the reply that he has made. It would have been more merciful, no doubt, to have then and there assumed what the reply would be, and, by answering it in advance, prevent him from making it. But by a certain perversity inhering in my nature, akin, I fear, to that which actuates a cat in toying with its prey, I was led to allow him to attempt the seeming avenue of escape that still remained, leaving him to find out later that he had plunged into a cul-de-sac.
I foresaw, for instance, when I wrote my answers in the last issue to Mr. Yarros and Mr. Bilgram, that Mr. Yarros would seize on the surface similarity between my reductio ad absurdum of property in ideas and Mr. Bilgram’s attempted reductio ad absurdum of no-property in ideas, and
make merry over my seeming inconsistency in objecting to this method of argument in the latter case while adopting it myself in the former. But I remembered that he laughs best who laughs last, and I cannot suppress a gentle chuckle over the innocent air of triumph with which Mr. Yarros has walked into the trap. Let us now take a look at the essential difference underlying this surface similarity. If Mr. Yarros had read my answer to Mr. Bilgram more carefully, he would have seen that I never asserted for a moment that, if Mr. Bilgram’s claim that a denial of property in ideas would leave us without a literature should be thoroughly established, the fact would not therefore prove either that such property is consistent with equal liberty or else that equal liberty does not always make for happiness and is a much less reliable guide than we now suppose. My objection to Mr. Bilgram was that he refused to consider, on the ground of irrelevancy, the theoretical argument that property in ideas is inconsistent with equal liberty, but instead, without pointing out any flaw in this argument, insisted that it must be unsound because in his opinion, unsubstantiated by any facts, and even against the facts, and against the opinion of most students, denial of property in ideas would destroy literature. Now, was my reductio ad absurdum of property in ideas anything of this nature? Not at all. I cited as a possible result of absolute and perpetual property in ideas the destruction of Spencer’s works for all time by the descent of the copyright to a bigoted Roman Catholic heir. This possibility is not a doubtful matter. It is undenied and undeniable. In fact, any one who looks at the matter without bias will admit the strong probability that such a result would ensue sooner or later, if not in the case of Spencer’s works, then in the cases of others equally important. And this being true, it shows property in ideas to be absurd, just as Mr. Bilgram’s claim, if it were true, would show no-property in ideas to be absurd. If there were half the probability that all the farmers would simultaneously destroy all their wheat in exercise of their right of property that there would be of the permanent destruction of valuable literary works under a system of perpetual copyright, I am inclined to think that we would be very great fools if we continued to protect private property in wheat. Nevertheless, aside from the absolute silliness of one supposition and the absolute reasonableness of the other, there is an important distinction that should be pointed out: the destruction of Spencer’s works, accompanied, say, by a sale of the copyright to the Roman Church, would absolutely prohibit the reproduction of them, whereas the destruction of wheat by all existing farmers would not prevent other men from becoming farmers and producing more wheat. The necessary readjustment in the latter case would probably be accompanied by much suffering and perhaps by some deaths, but it is not true—in fact, it is far from true—that we should all perish. The evil, however intense, would be of a temporary character, whereas the evil, under perpetual copyright, of the destruction of great literary works would be permanent, ineradicable, irremediable.
Right here I may well call attention to the difference between Mr. Yarros’s adherence to the law of equal liberty and my own. Judging from the tone of his present article, he seems to adhere to it as to a fetich; I adhere to it simply as a means of happiness. When I called Mr. Donisthorpe and Mr. Bilgram to order, I did so on the supposition that both those gentlemen had arrived at the conclusion that equal liberty makes for happiness. Hence I reasoned that the shortest way for us to decide the copyright question was to decide first whether copyright harmonizes with equal liberty, instead of betaking ourselves to an empirical examination of facts and figures, in neglect of the advantage which our common generalization gives us. But nowhere have I disputed the ultimate appeal to facts to overthrow even the supposed law of equal liberty. Mr. Yarros, on the contrary, seems to have a regard for abstract reasoning which prohibits him from allowing any such court of ultimate appeal. It is only fair to say, however, that this fetichism is not shown by him in dealing with other questions. In his treatment of the land question, for instance, it is conspicuously absent. If any one were to prove to him that the law of equal liberty requires that all users of any part of the American continent should pay rent to the heirs of its discoverer, Christopher Columbus, he would say:
To hell with the law of equal liberty! or words to that effect; but when this same law seems to him to require that all users of the steam-engine should pay a royalty to the heirs of its discoverer, James Watt, he apparently is as ready to grant this law a permanent abode in heaven as he would be in the former case to consign it to the nether regions. At least, I can gather nothing else from his criticism of my use of the reductio ad absurdum.
Mr. Yarros seems to be under an impression that I have tried to exclude the practical side of this discussion, and am therefore violating my own rule when I take up that side in any way. Again he has read carelessly. I have not tried to exclude the practical side. I have simply insisted on the inclusion of the theoretical side, and that, with those who accept the law of equal liberty on utilitarian grounds, the decision must turn on the theoretical argument. That I did not wish to exclude practical discussion is shown by the fact that, after protesting against the seeming attempts of Mr. Bilgram and Mr. Donisthorpe to exclude  discussion of the general principle, I then proceeded to meet the practical considerations urged by both of these gentlemen. I have adopted no rule, therefore, that forbids me to keep the practical question before Mr. Yarros’s eyes. If the view displeases him, that is not my fault. Besides, to adopt his own argument, he is not obliged to look at it.
This reminds me of that other part of Mr. Yarros’s rejoinder which I also clearly foresaw. When I argued that the publication of an invention practically takes away from all other men the liberty to invent the same thing for themselves, I knew, almost as well as I know it now, that Mr. Yarros would answer:
Let them shut their eyes, then, or stay in the house. They are not obliged to read about, study, or look at the new invention. But if they do so read, study, and look, they voluntarily abandon their liberty to invent the same thing themselves. It is plausible, but let us once more look below the surface. Then we see at once that the voluntary abandonment is all on the other side. Here we are, all of us, with equal rights to shut our eyes or open them, to stay at home or walk the streets, and to exercise our native faculties. This is the normal condition, the status quo. Some man comes along with an invention and parades it in the streets; and we are told that, in consequence of this act on his part, we must either give up our liberty to walk the streets or else our liberty to invent the thing that he has invented! Not so fast, my dear sir. The boot is on the other leg. Were you compelled to parade your invention through the streets? Were you even invited to do so? No! Then why do you do it? And why do you ask us to protect you from the consequences? You want your invention to yourself? Then keep it to yourself. Nobody says you nay. But when you parade it in the streets, you voluntarily abandon your liberty to keep it to yourself. And if you, denying this, ask us to aid you in depriving us of our birthright in the facts and truths of nature, we admire your assurance, but we do not bow to your will. Thus the very argument by which Mr. Yarros endeavored to escape is turned against himself and pens him in the closer. He thought he had struck the open road, and he finds himself in a blind alley.