To the Editor of Liberty:

When I helped start the copyright discussion, I did not expect that I should do more than look on and note the issues raised and form my own opinion. I had never heard or read a concise argument either for or against, so the argument was quite new to me. I have a strong objection to people rushing into print without qualifying themselves at least to the extent of becoming acquainted with some of the best thoughts expressed on the subject. So the other day, in order to fit myself as a competent juryman, I looked through a library catalogue. I found nothing but speeches by politicians and a few legal decisions,—nothing that led me to believe that the subject would be treated from a fundamental standpoint, except Lysander Spooner’s Intellectual Property. I remembered reading in Liberty that this was Spooner’s one positively foolish work; so I passed it by, and then took up the Encyclopædia Britannica. This was very unsatisfactory, the author of the copyright article not seeming to have any clear ideas, but being entirely befogged by legalities. So, as a matter of last resort, I took up Spooner, prepared to find in him a lot of whimsicalities about natural law, eternal verities, etc. I must admit, it was a very unegoistic act to measure a writer by any other person’s judgment than my own. I should have remembered Bakounine’s scorching of authorities and leaders. I mention this to show how liable, or how prone, even an egoist may be to fall into non-egoistic habits, if it happens to be another egoist on whom he relies. Judge, then, of my surprise to find in Spooner, as it seems to me, a most thorough, precise, and clear statement of the whole question, for and against. I have seldom read anything that so completely challenged my doubts and hazy ideas, and at once began to substitute clear and concise ideas right in their place. Apart from the special question of intellectual property, the book presents a first-class statement and answer to the general question of what is property and kindred problems.

You class me among the gladiators that you have to combat. Believe me, I never felt so like a pigmy as when comparing my feeble effort with Spooner’s. The book starts out by proving the general principle of the right of property in ideas. This occupies about twenty pages and is divided into nine sections. Then he proceeds to deal with objections, and divides these under fifteen heads, and there is not an argument against copyright that is not dealt with and to my mind disposed of. Even that triumphant reductio ad absurdum which Mr. Tucker was saving as a trump card, is demolished, and every point in Mr. Lloyd’s article is dealt with just as thoroughly.

Now to go back to the original point. In an article on copyright you characterized Alphonse Karr’s saying that literary property is a property, as a captivating error. Mr. Yarros replied, and you reprinted your article against George to show that literary work is a work of discovery rather than production, and in your added remarks you say that the form devised to express an idea is itself an idea, and therefore falls under the general law of no property in ideas. In the next number I ignore the distinction between discovery and production and accept your statement that the form devised is itself an idea, but ask for proof of your general principle of no-property in ideas. Instead of proving that principle, you impose a task on me and ask me to disprove an inherent, intrinsic, logical possibility. Your position, that because it is logically possible for two or more men to evolve the same idea, therefore to give one man the right of property in the idea is a denial of equal liberty, does not seem to me to be sound. I maintain that, in order to consistently carry out such a theory of equal liberty, you will be led to deny the right of all private property. To do this, it is necessary to prove that literary property is a property, and, as I can’t disprove your logical possibility, I shift the ground and ask you to disprove Spooner’s argument:

(1) If ideas be considered as productions of nature, or as things existing in nature, and which men merely discover or take possession of, then he who does discover or first take possession of an idea thereby becomes its lawful and rightful proprietor, on the same principle that he who first takes possession of any material production of nature thereby makes himself its rightful owner. And the first possessor of the idea has the same right either to keep that idea solely for his own use or enjoyment, or to give or sell it to other men, that the first possessor of any material commodity has to keep it for his own use, or to give or sell it to other men.

(2) If ideas be considered, not as productions of nature, or as things existing in nature, and merely discovered by man, but as entirely new wealth created by his labor,—the labor of his mind,—then the right of property in them belongs to him whose labor created them, on the same principle that any other wealth created by human labor belongs rightfully, as property, to its creator or producer. It cannot be truly said that there is any intrinsic difference in the two cases; that material wealth is created by physical labor, and ideas only by intellectual labor; and that this difference in the mode of creation or production makes a difference in the right of the creators or producers to the products of their respective labors. Any article of wealth which a man creates or produces by the exercise of any one portion of his wealth-producing faculties, is as clearly his rightful property as is any other article of wealth which he creates or produces by any other portion of his wealth-producing faculties. If his mind produces wealth, that wealth is as rightfully his property as is the wealth that is produced by his hands. This proposition is self-evident if the fact of creation or production by labor be what gives the creator or producer a right to the wealth he creates or produces.

But, secondly, there is no real foundation for the assertion, or rather for the distinction assumed, that material wealth is produced by physical labor and that ideas are produced by intellectual labor. . . . All wealth, therefore, whether material or intellectual, which men produce or create by their labor is in reality produced or created by the labor of their minds, wills, or spirits, and by them alone. A man’s right, therefore, to the intellectual products of his labor necessarily stands on the same basis with his right to the material products of his labor. If he have the right to the latter on the ground of production he has the same right to the former, for the same reason, since both kinds of wealth are alike the production of his intellectual or spiritual powers.

Then, to show that ideas are part of men’s wealth-producing faculties and should be treated as common articles of traffic, Spooner says:

The more highly cultivated a people become, the more are thoughts bought and sold. Writers, orators, teachers of all kinds, are continually selling their thoughts for money. They sell their thoughts as other men sell their material productions, for what they will bring in the market. The price is regulated not solely by the intrinsic value of the ideas themselves, but also, like the prices of all other commodities, by the supply and demand. On these principles the author sells his ideas in his volumes; the poet sells his in his verses; the editor sells his in his daily or weekly sheets; . . . . the lawyer sells his in his arguments; the physician sells his in his advice, skill, and prescription. . . . Men earn their living and support their families by producing and selling ideas, and no man who has any rational ideas of his own doubts that in so doing they earn their livelihood in as legitimate a manner as any other members of society earn theirs.

In regard to your answer to me, I deny that even existing copyright laws give a man a monopoly in ideas; they give him only a right of action against invaders or pirates, and so I maintain you did not meet my point about pirates. If you can show that there can be no property in ideas, that settles it; but, if you can’t, I am quite willing to accept the condition in which you place the copyright-holder in No. 177: Whenever they prosecute for infringement, they will be obliged by the most fundamental rules of evidence to prove that the alleged infringers are not independent authors. . . . Unless that is proved, the defenders will be held innocent. But in order to get that opportunity, the principle of property in ideas must be admitted, not denied. Then before a jury it will be sufficient to prove the degree of probability, and not the logical impossibility. So you see I do not fail to distinguish between the weighing of evidence and the framing of laws.

To deny the general principle that one has a right of property to a product of his own labor seems to me to be a violation of liberty. Because surely an idea must in the nature of things at some time or other be first discovered or produced, and so ought to belong to the first discoverer or producer. Consequently, to deny A the right of property because Z in the coming ages might possibly rediscover the same idea is unjust to A, and denies his liberty to the produce of his labor. If anybody has a right, A has that right. Worse than this, because out of a multiplicity of logically possible dishonest claimants a jury is unable to decide who besides A has a just title, and to declare on a metaphysical quibble that it is not logically demonstrable that they could not all be original, therefore nobody shall have a title, and the product be made common property,—this seems to me to be highly unjust.

This logical possibility of rediscovery seems to me to have but little force, and would not be called for were it not for the fear that the bearing o’ this hobservation [that literary property is a property] lies in the application on’t. Your ally seems to be less concerned in dealing with the truth of the principle than in its application, and so conjures up all sorts of evil. There are practical difficulties, of course, but none so great as to justify the denial of the right of property.

Mr. Lloyd does not stop to deal with the general principle, but, assuming that you have proved it, he proceeds right away with the so-called practical difficulties and treats us to some metaphysics. On encountering the first practical difficulty, he gives the whole case away to Communism. It is quite within the limits of probability, he says, that one man could invent a hoe so superior to all other tools of cultivation that all others would be worthless by comparison, and consequently he and his heirs could obtain untold wealth by exacting tribute from all copies, or even refuse to make them at all, and forbid others to do so for all time! !

Such a Frankenstein genius—and nobody able to circumvent him—is this logically possible? Reminds me of the old chestnut of the one man in a dug-out in the centre of civilization and Progress at a standstill, and the One Man unrelenting. But if such a genius comes, I see nothing in it but to accept his terms, or use the best tools we have, and trust to competition to evolve a wiser and better-natured genius. We have got along without him so far; whether he will be able to get along without us when he comes, is for him to determine. Anyhow, I am opposed to confiscating the work of his genius, and have enough faith in the spirit of competition to believe that he can be defeated in his diabolical scheme. Suppose Shakspere or Spencer stopping the reproduction of their works, says Mr. Lloyd. Suppose, then, they did? Has society a right to prevent them? The same with Mr. Tucker’s reductio ad absurdum about Spencer’s heirs being Roman Catholic and destroying the plates and his works. As Donisthorpe puts it in his Individualism,—suppose some rich cranks bought up all the Rubens and Greek statues, etc., and proceeded to destroy them, what would society do? Or suppose old Hutch buying up all the wheat and storing it in Chicago on the opening of the World’s Fair, with the diabolical intention of burning it all up! Will Mr. Lloyd join the Communists and deny his right, or fall back on Donisthorpe’s effective majority and deny the general principle of the right of property in wheat?

This is the only practical point Mr. Lloyd has touched on. The other points are metaphysical. The impossibility of destroying an idea or withholding it from use is excellent proof that there can be no property in ideas, says your ally. Unless you, Mr. Tucker, are willing to endorse that observation, I shall not call on Spooner to answer it. As for the idea that to understand a discovery is itself a discovery or a rediscovery of the same idea,—that must be a joke; it’s too poor for metaphysics.

The idea that fame and glory are the natural reward of genius; and the practical consequences of the theory that an idea is property when kept private, but not property when made public, are side issues to the general principle, and this communication is already far too long. I must refrain from calling on Spooner any more this time.

A. H. Simpson