One of the oldest talking points of anti-copyright activists is that Jefferson expressed skepticism about protecting creative works. This idea comes from an 1813 letter to Isaac McPherson, in which Thomas Jefferson himself expresses what some believe is a suspicion of copyright. The money quote, repeated ad nauseum in books like Lewis Hyde’s Common As Air, is this: “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.”
As Hyde sees reads this quote, the implication is clear: Sharing a creative work does not lessen the value of the original. From this, some intelligent people conclude, Thingz shud be free on teh Interwebz. The law professor David Post recently wrote a piece tracing a clear line from Jefferson’s letter to the limits on online copyright enforcement to the events of the Arab Spring. Essentially, he suggested, Jefferson + Twitter = freedom!
Maybe not. More serious academics like Evgeny Morozov have shown that the Internet played roughly the same role in toppling Arab governments that blue jeans did in the fall of the USSR: It’s an effective symbol, as way as a powerful way to communicate, but the truth is far more complicated. It’s also unclear what commercial-scale piracy on Megaupload has to do with any of this, but we’ll save that for another day.
Like many arguments made by anti-copyright academics, Post’s is not only illogical but based on shoddy scholarship. In a recent post, Copyhype blogger Terry Hart showed that Post either misrepresented or misunderstood Jefferson’s letter completely. Most important: Jefferson was talking about patents rather than copyrights. Also, the language in question doesn’t apply to copyright, since those laws covers expressions rather than ideas by definition. Bruce Springsteen has no claim to the idea of writing songs about New Jersey – just the particular songs that he wrote and recorded. For a law professor, these are significant mistakes.
Post’s response is pretty poor. (I admit that I’m biased since Terry is a friend, but it really is – see for yourself.) He argues that Jefferson’s comments are important to the debate on copyright “because he’s Jefferson,” “because he was smarter than you, or I, or anyone else currently commenting on intellectual property matters,” and “because he was the first person in history to articulate, in one document (and a short one, at that) the foundational theory of intellectual property.” The first two are obviously true, but just because what Jefferson says is important doesn’t make it relevant – he was talking about another subject entirely! (Famously, Jefferson also owned slaves, so the importance of what he says doesn’t make it a good basis for a legal system.) The third is completely untrue, and Terry provides several examples that prove it.
The details of the debate over Jefferson’s letter and its place in American law are best left to historians and lawyers. As a journalist, I would ask this: How could a law professor like Post make such obvious mistakes? As I show in Free Ride, this is par for the course. William Patry is a respected copyright scholar, and his book is full of embarrassing errors – the kind of stuff anyone could easily check. And the king of bloopers is Lawrence Lessig, a law professor who can’t be bothered to get his facts right. (There are many examples of Patry’s and Lessig’s mistakes in my book.) Lessig suggested that efforts to cut online copyright infringement were “rendering a generation criminal” – when the piracy he was talking about was a matter of civil law. For the average person, this is a completely understandable misstatement. But for a Harvard law professor?
(Important clarification added: Lessig points out that this behavior was illegal under the 1997 No Electronic Theft Act, which made it criminal. But the “generation” he was talking about was never charged under this; those who uploaded works to file-sharing services faced liability, not criminal charges. If you look at the specific piece I took his quote from, it only talks about RIAA lawsuits.)
By now you’re probably wondering why I – a mere journalist – think I’m as smart as these respected legal academics. I don’t. And that’s precisely the point: They seem too smart to make these kinds of mistakes. So I wonder why they keep saying things that aren’t true.