Second Nyan Cat Award Goes To The Fake Thomas Jefferson And His Copyleft Creators

This Nyan Cat awards are given for outstanding achievement in disinformation, web myths and general web based idiocy.  

One of the biggest and most important urban myths that the Copyleft loves to propagate is the one about Thomas Jefferson and copyright. Several times now I’ve had the following Jefferson quote thrown at me when I refer to the founding fathers and the constitutional foundation of copyright.

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. – Thomas Jefferson. Letter to Isaac McPherson 1813. 

Wow! It really sounds like Jefferson was the founding member of the Copyleft! This is very similar to the arguments made against copyright by people like Electronic Frontier Foundation’s John Perry Barlow.

The first problem with this? JEFFERSON WAS NOT TALKING ABOUT COPYRIGHT. He was talking about patents and inventions. A very specific one at that. All one has to do to verify this is to  read the two paragraph immediately preceding this quote.  Patents and Copyright are two very different things. Patents protect inventions. Copyright protects expression.  I can not express how important it is that there is a distinction between these two very different kinds of intellectual property.

The second problem with this? When you put this quote back in context you see that Jefferson is not even arguing against patents.  Among other things he seems to be quibbling about whether patents should extend beyond the lifetime of the inventor. If Jefferson was opposed to the entire idea of Intellectual Property (as many in the tech blogosphere argue) why would he serve on the US patent board? And why would he approve patents?

Third. Jefferson had little to say about copyright when compared to others. He didn’t have much to do with the copyright laws. Asking Jefferson instead of Madison about copyright is like asking Ringo instead of John Lennon about Strawberry Fields Forever. Wait, I take that back. It’s like asking Charlie Watts instead of John Lennon about Strawberry Fields Forever. Jefferson was The Patent Guy, and he was in France when much of the discussion occurred.

And why is that important? Well when courts interpret the laws and constitution they often read historical texts that shed light on the author’s thoughts at the time. When it comes to copyright it’s unlikely Jefferson would be consulted. More likely Madison and Pinckney would be consulted. Indeed Madison and Pinckney’s views on Copyright are very similar to the laws we have today and naturally how they are interpreted.

Granted one may use Jefferson’s letters and thoughts in an honest discussion about the length of exclusive rights for patents. You could even by analogy have an honest discussion about the length of copyright terms. But to use a single letter by Jefferson to dispute the legal and ethical basis of constitutional notions of copyright is not just revisionist, it’s dishonest. Do I need to remind our readers the role revisionist histories have played in human tragedies?

That is why we at the Trichordist are proud to give our 2nd Nyan Cat award to The Fake Thomas Jefferson and his Creators! 

There are many people that deserve to be credited as contributors to this dangerous revisionist history. But there are too many to thank by name. However we would be remiss in our duties if we didn’t single out three people that deserve special recognition:

John Perry Barlow. This may be the Ur-blog post when it comes to this fantasy.

The Economy of Ideas

Lawrence Lessig.  Here he clearly uses Jefferson’s out of context quote on the length of patents to begin a discussion about all Intellectual Property rights.  Lessig being the Guru of the copyleft, this has had the effect of inserting Jefferson into the middle of the constitutional debate about copyright when he doesn’t belong there.

Jefferson’s Nature

David Post has written a sort of legal alternate reality historical fiction In Search of Jefferson’s Moose: Notes on the State of Cyberspace. A sort of what WWJD (What would Jefferson do) about cyberspace.  Those on the copyleft often refer me back to his writings when the intention of our founding fathers regarding copyright and intellectual property comes into question. Just as The Singularity Myth partially emerged from science fiction, The Fake Thomas Jefferson has been  birthed by writings like this.

For a fascinating and in depth exploration of The Fake Thomas Jefferson I refer you to these two papers by constitutional scholar Terry Hart.

Who Cares What Jefferson Thought about Copyright

Myths from the Birth of US Copyright

The fact these two articles are often viewed as controversial in cyberspace shows us just how far from historical reality the discussion has drifted.

It should also be noted that David Post  responded to Terry Hart’s “Who cares what Jefferson thought about copyright”:

Why Should We Care What Jefferson Thought About Copyright

And Terry Hart then responded:

Response to David Post, re: Jefferson

Finally if you want the real deal on the founding fathers and intellectual property try The Federalist Papers.  Quote from Madison himself:

1. A power “to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries.”

The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.