May 19, 2009  ·  Lessig

The world of American copyright scholars is very familiar with the poetic passage of Jefferson’s, written in a letter:

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. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.

Thomas Jefferson letter to Isaac Mcpherson, August 13, 1813, reprinted in H. A. Washington, ed., Writings of Thomas Jefferson 1790-1826, vol. 6 (Washington, D. C: Taylor & Maury, 1854), 180-81; quoted in Graham v. John Deere Company of Kansas, 383 U. S. 1, 8-9n.2 (1966).

David Ellerman writes to point to an earlier version of the same point, this one penned by Augustine. As Augustine wrote:

The words I am uttering penetrate your senses, so that every hearer holds them, yet withholds them from no other. Not held, the words could not inform. Withheld, no other could share them. Though my talk is, admittedly, broken up into words and syllables, yet you do not take in this portion or that, as when picking at your food. All of you hear all of it, though each takes all individually. I have no worry that, by giving all to one, the others are deprived. I hope, instead, that everyone will consume everything; so that, denying no other ear or mind, you take all to yourselves, yet leave all to all others. But for individual failures of memory, everyone who came to hear what I say can take it all off, each on one’s separate way.

Augustine Sermon; quoted in Scan Globally, Reinvent Locally: Knowledge Infrastructure and the Localization of Knowledge.” In:  Joseph Stiglitz and the World Bank: The Rebel Within. Chang, Ha-Joon (Ed.),London: Anthem, 2001, pp. 194-219, quoting Wills, Garry 1999. Saint Augustine. New York: Viking, p. 145.

Ellerman is a researcher who had worked for Stiglitz at the World Bank. Thanks to him, Augustine is the new Jefferson.

  • http://brokensymmetry.typepad.com Michael F. Martin

    Jefferson goes beyond Augustine. Both express the concept of non-rivalrous consumption and the possibility for broadcast that that permits. But Jefferson considerably sharpens it with the image of the candle flame, and adds the concept of non-excludability.

    On this occasion, Jefferson’s image calls to mind for me the self-organized criticality of the forest fire model. Jefferson may be right that ideas spread like fire, but the rate of spread depends on the average density of connections at each node within a social network, and those connections may be destroyed from time to time so that our intellectual space never quite becomes “expansible over all space, without lessening their density at any point, and like the air in which we breathe, move.”

    Maybe Augustine was wise not to recognize non-excludability as an intrinsic quality of ideas.

  • http://www.nomail.com three blind mice

    jefferson was no economist. in his personal life, he failed repeatedly in business and ended his life heavily in debt – despite all that free labor provided by a few score african slaves, but we digress.

    he who lights his taper at mine, receives light without darkening me.

    let’s put this nonsense into an economic context: let’s say massa tom was in the business of producing light, like editon’s light bulb, jefferson’s taper was his competitive advantage.

    lighting the taper of another creates a competitor for the production of light. full stop. if said competitor has a cheaper source of wax and can undercut jefferson’s prices, jefferson will quickly find himself darkened, his store front windows whitewashed, and his buiness being sold at auction.

    ideas which provide competitive advantage are inherently rivalrous. freely sharing these ideas with others allows competitors to enter the market without having to innovate themselves. if jefferson had any business sense, he would have written: “he who lights his taper at mine, should get off my yard and light their own damn candles.”

    augustine was selling religion. there’s no rational economic model for this: you can’t hardly give that stuff away.

  • Bill

    Three Blind Mice misses the essential point: ideas (or thoughts) may be exclusive only so long as they are kept to oneself. Once an idea has been expressed, it can spread, yet in spreading the idea is not diluted. We can see this in nature; animals observe others feeding and investigate; even viruses “exchange” information (DNA). The sharing of information, intentionally or not, seems to be very fundamental.

    (Which is not to say that one might not keep an advantage to oneself by keeping quiet with an idea. So, if TBM’s competitor keeps quiet about his cheaper source of wax, he can keep his business advantage.)

    Patent and copyright laws are purely human inventions, for purely human purposes. They may, in some forms, benefit society as a whole, but they are an artificial, an un-natural, means of restricting the free flow of information.

  • http://brokensymmetry.typepad.com Michael F. Martin

    Bill,

    I think that patent and copyright law may be more “natural” then you give them credit. While it is true that the same idea can be held by two or more without being diluted (Augustine’s non-rivalry), it is not always true that in expression an idea remains undiluted. There are always costs associated with the expression and spreading of an idea. In a digital era, those costs may seem like nothing, but they are there.

    In fact, the costs of expression should not be measured in terms of the costs of communication alone, but also in terms of the costs of matching a person who can express something to a person who can understand and appreciate the expression. To my mind, the rapidly declining costs of digital communication have only helped reveal these matching costs, which have been there all along.

  • Rick

    The difficulty people have in accepting the sharing proposition rests largely in the acceptance of the existing economic model as the ONLY possible economic model. It isn’t; it’s just the one that rewards elitist society the most and has come into dominance because it allows elistist control of government and , thereby, the “rules” by whch we play.
    The criticism that Jefferson was somehow a failure because he ended his life in debt I find particularly amusing. Perhaps he was just one of the earlier ones to perceive the way of life that we so “cherish” today. Namely – keep the credit rating in good shape (which he apparently did), have cool toys (which he did), make the payments (yep), and die laughing at the stupidity of the whole thing. That pretty well describes how a great many middle and upper middle class, and even “wealthy” people live today. Why? Because that is precisely what the current corporate capalist, and thereby governmental, economic model has told us we should do.
    The most gracious appraisal of that model that I can make, especially for us “common folk”, is that it is at best disfunctional. We’re approaching the point of having to share not just the lighting of the candle, but the very light itself. So you say, “Let them eat cake.”? Somehow I’m not surprised.

  • http://Brokensymmetry.typepad.com Michael F. Martin

    Rick,

    So Jefferson should be lauded for his model of shifting the burden to those who come after him? Should we then thank him for pioneering the scheme before Ponzi? Your praise is damning.

    You mock the existing institutional order for its distributional inequalities (“Let them eat cake”), but by your logic we would both have it and eat it too.

  • http://www.robmyers.org/ Rob Myers

    “let’s say massa tom was in the business of producing light”

    Sure. Or we could say that rather than tapers Jefferson was discussing sticks of dynamite. Suddenly it seems an even worse idea!

    “lighting the taper of another creates a competitor for the production of light”

    It creates a consumer of light, if we must reduce everything to marketarianism.

    Possibly Jefferson could have charged people for tapers and then lit them in a secret room somewhere they would never find them? A Dark Room Match system, or DRM system for short. ;-)

  • http://vitanuova.loyalty.org/ Seth Schoen

    The Internet is awesome. Ellerman attributes this only to “Augustine Sermon”, but Google Books has the work by Gary Wills, which cites it as “S 187.2″. And Documenta Catholica Omnia has (among other things) Sermones Ad Populum, Classis II: De Tempore, where we can find the full text:

    2. Verbum a Patre non recessisse adventu in carnem, similitudine monstratur. Quid hoc miramur de Verbo Dei, cum sermo iste quem promimus ita liber sensibus influat, ut eum et recipiat, et non includat auditor? Nam nisi reciperetur, neminem instrueret: si includeretur, ad alios non veniret. Et utique sermo iste verbis syllabisque dividitur: nec tamen ex eo tanquam ex cibo ventris singulas particulas tollitis; sed omnes totum auditis, totum singuli capitis. Nec timemus dum loquimur, ne totum audiendo unus absumat, nec alter possit habere quod sumat: sed ita vos attentos esse volumus, nullius aurem mentemque fraudantes, ut et totum singuli audiatis, et totum ad audiendum caeteris relinquatis. Neque hoc fit alternis temporibus, ut cum sermo qui dicitur ad te primum intraverit, exeat a te, ut ad alium possit intrare: sed simul ad omnes venit, et totus ad singulos pervenit. Et si totus memoria teneri valuisset, sicut ad totum audiendum omnes venistis, ita cum toto singuli rediretis. Quanto magis Verbum Dei, per quod facta sunt omnia, et quod in se manens innovat omnia; quod nec locis concluditur, nec temporibus tenditur, nec morulis brevibus longisque variatur, nec vocibus texitur, nec silentio terminatur; quanto magis hoc tantum et tale Verbum potuit matris uterum assumpto corpore fecundare, et de sinu Patris non emigrare? hinc ad oculos humanos exire, inde mentes angelicas illustrare? hinc ad terras procedere, inde coelos extendere? hinc homo fieri, inde homines facere?

    I’ll try to translate this:

    That the Word did not depart from the Father through its arrival in the flesh is demonstrated by an analogy. Why should we marvel at this concerning the Word of God, when this speech which we produce so freely enters the senses that the listener receives it but does not confine it? For unless it had been received, it would not have instructed anyone: if it had been confined, it would not have reached the others. And in any case this speech is divided into words and syllables: but nonetheless you do not take from it as though little pieces of food into your bellies; but all of you all hear all of it and each of you takes all of it. Nor are we afraid when we are speaking that one person will, by listening, consume the whole so that another can’t have what he consumes: but we want you to pay attention in this way, cheating nobody’s ear or mind, so that you each both both hear everything and leave everything for the others to hear. And this does not happen one at a time, so that when the speech which is spoken first has first entered you, it must then exit you, so that it can enter someone else: but it comes to everyone at the same time, and the whole of it reaches each person. And if the whole has been worth keeping in your memory, just as you all came to hear the whole, you each go away with the whole. How much more the Word of God, by which all things were created, and which abiding in itself renews all things; which is not proven by quotations nor distorted by time nor changed by long or brief delays, nor constructed by voices, nor ended by silence; how much more could such and so great a Word fertilize a mother’s womb by taking on a body, and not leave the Father’s breast? how much more could it come here to human sight, and there illumine angels’ minds? here come to earth, and there stretch out the heavens? here be made man, and there make men?

  • Clem Weidenbenner

    Michael F. Martin said:
    …In fact, the costs of expression should not be measured in terms of the costs of communication alone, but also in terms of the costs of matching a person who can express something to a person who can understand and appreciate the expression. To my mind, the rapidly declining costs of digital communication have only helped reveal these matching costs, which have been there all along. …

    Indeed, I think Augustine already appreciated the potential differences in understanding by various members of the audience: “But for individual failures of memory, everyone who came to hear what I say can take it all off, each on one’s separate way.”

    In Augustine’s day wasn’t communication was an entirely different beast? Mass communication was extremely difficult – the printing press about another thousand years downstream. Formal education was rare, so many of the people he would encounter in everyday life would likely struggle to digest the core of his thesis. Augustine may not have considered this a case of “matching costs”, but I think he would recognize the expression.

    So where does this get us? Is message/audience matching (or translating) in need of patent protection?

  • Jardinero1

    I take issue with Michael Martin. In spite of the copyfighters desire to define creative works or ideas as non-excludable, it doesn’t hold up to scrutiny. Non-excludable goods are goods that you cannot avoid consuming. Things like national defense, fire department service, or the streets and sidewalks in front of your house; those are non-excludable goods. If you can willfully opt out of the consumption of a thing with no consequences then that thing is excludable. Using Jefferson’s example, you don’t have to accept the light from the torch; it’s excludable. Creative works are excludable. Even ideas are excludable. I can ignore your idea without consequence.

    Copyright is not a natural right. Natural Rights don’t require a third party to allow their free exercise. Natural rights include the right to defend yourself, speak freely, worship, or associate. In theory, even ownership of real property could be considered a natural right since, in theory, you could enforce your property rights yourself. A third party can abridge natural rights but is not required to exercise them. In modern parlance, natural rights are called negative rights and rights which require the action of a third party are called positive rights. Copyright is not a natural right or a negative right because it requires the state to exercise and enforce it. Absent the coercion and violence of the state, there would be no copyright. Prior to the advent of the modern nation state there was no copyright.

  • http://Brokensymmetry.typepad.com Michael F. Martin

    Seth,

    Thank your for your gift of time in finding and translating. This makes the passage all the more remarkable. I wonder sometimes about the influence of Aristotle’s Nicomachean Ethics on Augustine. Would you know where to look for discussion of this?

    Clem,

    We should not permit patents on the patent system itself. Note that already in 1859 Lincoln, in his famous “fire of genius” speech had identified the patent system as a natural step in the progress of communication that permits more wide-scale and long-term matching. Speech, writing, the press, the Internet, and the patent system — all provide the substrate for a network of knowledge to form.

  • http://brokensymmetry.typepad.com Michael F. Martin

    Jardinero1,

    I didn’t meant to ignore your comment, which you must have posted while I was working on my response to Seth and Clem.

    We may not disagree as much as it seems. I’m not sure. My point was that Jefferson implies that ideas have an intrinsic quality them non-excludable whereas Augustine (and I) do not believe that to be true, at least in general. If Jefferson is correct, then ideas are “public goods” in the economic sense (like the national security, freedom from fire, or public roads to which you refer) before any act of government (i.e., in their “natural” state). And if that is the case, then like Jefferson (and I guess you) we might believe that intellectual property law is unnecessary.

    But you, I, and Augustine appear to agree (contra Jefferson) that ideas are to some extent excludable in a state of nature. Thus, we also agree that intellectual property that is enacted and enforced by a state is not “natural” in the sense that such laws do not mimic the exclusivity possible even before their enactment. Rather, such laws go beyond the natural order by providing a mechanism for an increased number of connections to be made and transactions to occur than would be possible in the state of nature. The adjective “natural” does us little good in understanding this because it turns out that a similar mechanism probably underlies many “natural” phenomena, such as the forest fires I mentioned above. In any case, even if you meant to use the label “copyfighter” in a pejorative sense, I am happy to wear it. Copying is not remixing, and copying without sharing of reward or recognition through attribution or otherwise is wrong — a threat to the very fabric of our society. I encourage you to think more about what specifically you propose.

  • Clem Weidenbenner

    Michael F. Martin:

    Patents, copyrights, trade secrets and other forms of intellectual property protections have demonstrated time and again how they can indeed benefit mankind. But can too much of a good thing become a negative? Are all patents equally useful? The record clearly suggests that abuses occur. We are afterall “only” human – by which I only mean to suggest that IP protection systems, as human inventions, are not perfect.

    On your latter point – “Speech, writing, the press, the internet, and the patent system — all provide the substrate…” – I rather look at these as more an infrastructure than a substrate (an alphabet, language, and grammar… these seem more like substrates to me). In the realm of infrastucure I would add education, and other mass communication channels (radio, TV) as facilitating the development of a network of knowledge.

    BTW, many thanks for the ‘fire of genius’ reference. It indirectly led me to an article on open access that I need to have a better look at.

  • http://brokensymmetry.typepad.com Michael F. Martin

    Clem,

    You’re very welcome for the reference. Lincoln’s is a wonderful speech worthy of study for many reasons.

    To answer your question, I do agree that the system is subject to abuses. Specifically, there is always the possibility that system insiders may take advantage of their knowledge to effect opportunistic redistributions of wealth. So in the patents case, I think of patent lawyers who do not publish or otherwise contribute to any science or engineering field but who nevertheless obtain patents and sue those who do. This is the best way to define a “patent troll” in my opinion. Other organizations that may speculate in patents by acquiring them from inventors and licensing or selling them to corporations with established marketing, distribution, and manufacturing channels are simply adding liquidity into the market and facilitating a division of labor between inventing and later-stage R&D. (As an aside, the reason why VCs pooh-pooh ideas vs. execution right now is because there is only a trickle of ideas relative to a flood of eager entrepreneurs; hence the multiple simultaneous pitches.) There will always be a role for government to play as referee in preventing abuses; but the circumstances now (in patent law at least; in copyright I’m not so sure) give too weak a hand for inventors to play.

    Technology like the Internet is only a substrate for the more fundamental networks that govern our society — the social networks that bring order to our day to day lives. Those other things you mention look like substrates for our social networks too.

  • Matt J.

    To Micheal F. Martin-

    The influence of Aristotle on Augustine would be very minimal, since at that time, Platonism, not Aristotelianism, was considered real philosophy. When Aristotle was read at all, it was as a “pro-paideutic” to Platonism or Neo-Platonism.

    In addition to this, Platonism’s influence on Augustine is well-known, ever since he read Hortensius (as mentioned in the Confessions).

    True, Hortensius was written by Cicero, not by Plato, but it was primarily Platonism that influence Hortensius, with a dash of Stoicism. But hardly any influence from Aristotle.

    The similarity you see between the Nicomachean Ethics and the Augustine quote is probably due to Plato’s own influence on Aristotle.

  • Matt J.

    To Michael F. Martin-

    It is well known that the dominant philosophical influence on Augustine was Platonism, not Aristotelianism. Indeed: especially among the Latin speakers, Aristotle was rarely read in Augustine’s time. When his works were read, they were considered “pro-paideutic” to Plato.

    So the similarity you see between Nicomachean Ethics and Augustine’s own idea is more likely due to Plato’s influence on both Aristotle and Augustine than to Aristotle’s direct influence on Augustine.

    Also, consider that Augustine did not like Greek, never learned it as thoroughly as CIcero did, so he didn’t have much access to Aristotle’s works: few had as yet been translated into Latin. The Nicomachean Ethics had certainly not yet been translated. Grosseteste’s translation (1253) was the first.

  • Sandy Thatcher

    Sure, ideas may be “public goods” and, in some sense, “non-excludable,” but where does this get us as an argument about copyright, since copyright explicitly does not pertain to ideas, but only expression? One can accept Jefferson’s point and still believe in the economic utility of copyright law. Perhaps only in some extreme limiting case might idea and expression be so inseparable as to make Jefferson’s point relevant to copyright. E.g., is E=mc2 an expression of an idea or just the idea itself?

  • http://www.baukuh.it pier paolo tamburelli

    chè, per quanti più si dice lì nostro,
    tanto possiede più di ben ciascuno
    Dante, Purgatorio, XV, 55-56

    “For there above, when more souls speak of ours,
    the more of goodness each one owns, “

    (but in italian sounds more like a general statement, not only referred to hereafter, Dante just says “there”, not “there above”, but actually it is quite difficult to translate)
    of course Dante depends on Aristotle for this, mainly through Ibn Rushd
    ciao

    pier paolo

  • Pablo

    Thanks for posting this…fascinating stuff, esp. with the Tennenbaum trail going on. Very cool.