Copyright and Patent in Benjamin Tucker's Periodical
[From the book The Debates of Liberty]
Intellectual property — as embodied in copyright and patent — was the subject of intense debate within Liberty. Benjamin Tucker flatly rejected the idea that legal copyright was compatible with anarchism. The strength of Tucker's opposition to patents may be judged from his essay "State Socialism and Anarchism: How Far They Agree, and Wherein They Differ." Here, Tucker explained the key difference between individualist anarchism's position on intellectual property and that of the major competing radical school of his day — state socialism:
"The two principles … are AUTHORITY and LIBERTY, and the names of the two schools of Socialistic thought which fully and unreservedly represent one or the other of them are, respectively, State Socialism and Anarchism."
Tucker explained that "nearly all political economists" confined themselves to describing society as it existed. By contrast, socialism and anarchism described society as it should be, and explored the means by which such an ideal could come about. Tucker observed, "This seems to have been done independently by three different men…: Josiah Warren, an American; Pierre J. Proudhon, a Frenchman; Karl Marx, a German Jew." The "parting of ways" between Marx on one hand and Warren and Proudhon on the other was their method of "striking down monopoly." Following the path of "Authority," Marx accepted that "government must assume all the functions of the economy in order to protect it from monopoly…. First, then, State Socialism, which may be described as the doctrine that all the affairs of men should be managed by the government, regardless of individual choice" (emphasis in original).
Warren and Proudhon adhered to "Liberty" and "saw that monopoly rested upon Authority [government] and to destroy the former it was necessary to destroy the latter." The means they advocated was "to create as much competition as possible." Thus, they launched a frontal attack on the four monopolies of "principal importance, — the money monopoly, the land monopoly, the tariff monopoly, and the patent monopoly." To Tucker, patent was one of the four mainstays of monopoly upon which Authority rested.
A debate on intellectual property within Liberty was, perhaps, inevitable. Lysander Spooner, one of Tucker's mentors, had written a work entitled The Law of Intellectual Property; or, An Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas. Moreover, Herbert Spencer, a thinker much quoted and and respected by Liberty, argued vigorously for intellectual property. The stage was set for a clash of concepts.
As a topic of debate, intellectual property appeared in the July 7, 1888, issue of Liberty through a provocative article in which Benjamin Tucker declared, "there can rightfully be no such thing as the exclusive ownership of an idea." From this point, the twin issues of patent and copyright gradually blossomed into major debate through which the concept of "property" was finely honed.
The Boundaries of the Debate
In a debate, it is natural to assume that the exchange of opinions swings back and forth between advocacy and denial. This is not a precise statement of what occurred in the debate on whether ideas could be property. Most of the positions held were more complicated. For example, the egoist James L. Walker, who wrote under the pseudonym Tak Kak, contributed heavily to the anti-intellectual-property side. Yet he wrote, "My thoughts are my property as the air in my lungs is my property." Clearly, Tak Kak did not object to copyright and patent on the grounds that ideas could not be "property" in some sense. Both sides of the debate acknowledged that an individual owned his own thoughts, which could be expressed or withheld entirely at his option.
Moreover, both sides believed that an idea could remain the property of its originator even after it had been imparted to others. Tak Kak maintained,
If any person wishes to live by imparting his ideas in exchange for labor, I have nothing to say against his doing so and getting cooperative protection without invading the persons and property of myself and my allies… Mr. Spencer [Herbert Spencer] is welcome to all the property in ideas that he can erect and maintain without government. No one can speak or write, and yet have the same advantage as if he were silent… But whatever he can do by contract, cooperation, and boycotting … let him do so at his pleasure.
Tak Kak restated his theme in different terms: "As long as Spencer has an idea in his brain, it is his, and it is not mine until it is in my brain."
Note two key points in Tak Kak's position. The first is a restatement of the self-ownership principle: that is, every human being simply by being human has jurisdiction over his own body. By logical extension, self-ownership protected any idea within his mind. The second point is that "communicated" ideas — ideas that ceased to be solely within his mind and assumed a public status — no longer enjoyed the automatic protection of self-ownership. Any ownership of public ideas did not derive from natural rights, but from a contract or from what Tak Kak called "cooperative protection."
Tucker refined Tak Kak's second point. In distinguishing between an idea within your mind (private) and an idea that had been communicated (public), Tucker claimed that the ownership of a private idea did not result from originating it. The ownership resulted from the fact that the idea was protected by other rights. You owned an idea in your mind simply because it was impossible for anyone to access it without your consent unless they used force, such as torture. Thus, the "ownership" of private ideas was merely a byproduct of self-ownership.
A public idea was not comparably protected by self-ownership. When an author or inventor publicized his idea, he relinquished what Tucker termed "a power which theretofore had been guarded by other rights — the right of inviolability of person, the right of privacy of domicile." Tucker was clear — by publishing his work, an author or inventor did not relinquish his right to it for there was no right to begin with. There had been a protective shield provided by self-ownership. Publication removed that protective shield. If an idea was in the public realm, an individual could access and use it without violating anyone else's "equal liberty."
Thus, Tak Kak and Tucker defined one boundary of the debate, the anti-intellectual property side (hereinafter AIP). You own private ideas. They can be protected either through silence or through contracts similar to those currently used by computer companies to "license" software packages. But there was no "natural" right to a public idea. In being communicated, it became the private property of anyone who held it in their minds thereafter. As J. William Lloyd expressed it, "You cannot cut an idea bodily out of a brain as you might transplant a strawberry from one garden to another. If I think the same thought as my neighbor, very well; it is plain that I have taken and received nothing from him, for he still has his thought as strong as ever."
Proponents of intellectual property (hereinafter IP) insisted that copyright and patent were natural rights and deserved protection whether they were private or public ideas. In general, these proponents maintained one of two positions. The most radical position was the claim that the discoverer of an idea became entitled not only to his specific instance of the idea (the private one), but also to all subsequent instances of it (the public ones) without exception.
The more commonly argued IP position was that the discoverer of an idea held exclusive ownership until and unless someone else substantiated his independent discovery of the same idea — for example the discovery of how to store electricity in a battery. At that point, the independent discoverer acquired an ownership claim equal to that of the other originator. Such dual ownership would be far more likely to occur in patents than copyrights because inventors use the same state-of-the-art technology to address the same questions and, so, often come up with identical solutions.
IP advocates insisted that ideas were property because they were the products of human labor, like chairs or tables, and every person rightfully owned what his labor produced. Lysander Spooner was widely quoted to support this argument: "the principle of individual property … says that each man has an absolute dominion, as against all other men, over the products and acquisitions of his own labor." In short, intellectual property was a natural right.
Opponents of intellectual property countered by claiming that the proper reward for such labor was the specific idea produced.
Although the discussion of intellectual property took many intricate twists within Liberty, it ultimately revolved around two key questions: (1) What is property? and (2) What is an idea?
What Is Property?
IP advocates generally defined property as wealth whose ownership has been acquired either through discovery or through labor. Spooner stated, "Property is simply wealth, that is possessed — that has an owner; in contradistinction to wealth, that has no owner, but lies exposed, unpossessed, and ready to be converted into property, by whomsoever chooses to make it his own" (emphasis in the original). Spooner continued, "Any article of wealth which a man creates or produces by the exercise of any portion of his wealth producing faculties is … clearly his rightful property."
Tucker addressed the question in more fundamental terms. He asked why the concept of property had originated within society in the first place. The logic behind this approach was his belief that concepts are problem-solving devices. Ideas arise only because they serve a need, they answer a question. To illustrate this, consider a universe parallel to our own which runs along slightly different rules. In this alternate universe, you can satisfy needs simply by wishing for satisfaction. Food appears magically in your hand, clothes on your limbs, and a bed under your tired body. It is unlikely that the concept of money would evolve in such a universe, because that concept came about to solve the problem of transferring and storing wealth. Thus, in the parallel universe, the problem-solving concept of money would not arise because the problem did not exist.
Tucker used this approach to analyze the concept of property. He asked, what is it about the nature of our universe and of man that gives rise to property in the first place? What problem is being solved?
Tucker argued that the idea of property arose as a way to solve conflicts caused by scarcity. In the real universe, goods are scarce and this fact leads to inevitable competition among men for their use. For example, since one chair cannot be used in the same manner and at the same time by two individuals, it was necessary to determine who should use the chair. The concept of property resolved this problem. The one who could claim the chair as property should determine its use. "If it were possible," wrote Tucker, "and if it had always been possible, for an unlimited number of individuals to use to an unlimited extent and in an unlimited number of places the same concrete thing at the same time, there would never have been any such thing as the institution of property."
This argument had direct implications for copyright and patent. A public idea was not a scarce good, as it could be used by an unlimited number of individuals to an unlimited extent and in an unlimited number of places. According to Tucker, this meant means that intellectual property as a natural right ran counter to the very purpose for which the idea property evolved.
In fact, intellectual property would create a scarcity where none naturally existed. In short, it would create an unnatural monopoly. To claim all potential generators because you have built one yourself, Tucker argued, is comparable to "a claim on the part of a man who first struck oil to ownership of the entire oil region or petroleum product."
What Are the Essential Characteristics of Property?
Anti-intellectual-property advocates claimed that copyright and patent contradicted not only the purpose for which the idea of property evolved but also the essential characteristics of property.
What were these characteristics? Two related ones were claimed: alienability and transferability. In other words, to qualify as natural property, it has to be possible to alienate it from one person and transfer it to another. Not all transfers had to be complete or final. For example, a homeowner might decide to rent out a room rather than sell the entire structure. But, in principle, it had to be possible to alienate and transfer a good in order to consider it "property."
Tak Kak applied this standard to ideas: "The giver or seller parts with it [property] in conveying it. This characteristic distinguishes property from skill and information. Bread is property." But the art of baking was not property; it was a skill that was not alienated in being transferred. "Monopoly consists in the attempt to make property of liberties, discoveries, sciences, and arts by a pretended or forced alienation."
The idea that property must be capable of alienation was reminiscent of Thomas Jefferson's famous analogy between ideas and candles. Jefferson explained that, just as a man could light his taper from an existing candle without diminishing the original flame, so too could he acquire an idea without diminishing the original source. Jefferson wrote further,
If nature has made any one thing less susceptible than all others of exclusive property, it is … 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.
The inalienability of ideas was a problem not only for the original owner, but also for anyone who received it. The recipient had no choice but to avail himself of the idea once it had been communicated to him — once he had heard or seen it. That is, the recipient had no means by which to pluck the information out of his head and return to a state of ignorance. Nevertheless, the enforcement of intellectual property prevented him from using what was in his own mind.
Along the theme of nonalienability, Lloyd postulated that an essential characteristic of property was the ability to destroy what you possess. He commented further, "the impossibility of destroying an idea, or withholding it from use … is excellent proof that there can be no property in ideas. What is an idea?"
IP advocates argued from natural rights that an idea is the product of intellectual labor and, thus, a form of wealth.
The AIP egoist J.B. Robinson approached the issue differently. "What is an 'idea'?" he asked. "Is it made of wood, or iron, or, stone? … the idea is nothing objective … that is to say, the idea is not part of the product; it is part of the producer." In other words, to own an idea in another person's mind reduced to a form of slavery because the ownership claim was over an aspect of another person's body. Ideas could not be owned by anyone other than the individual in whose mind the idea resided.
Thus, AIP advocates added another essential characteristic to property — it must be tangible. Tak Kak commented, "A convenient test [of property] is this: no ownership except in that which is embodied in tangible form, hence subject to wear and decay, for this is the general mark of products as distinct from that so-called production which can be imparted to others and become common property without the original owner having less than before."
The Debate Debuts: The Question of Patent
In the July 7, 1888, issue of Liberty, Tucker critiqued an article by Henry George that had appeared in the June 23 issue of the Standard. George claimed that ownership came from production, not discovery. This led him to reject patents, describing them as ideas that manipulated the laws of nature through machinery. He wrote, "No man can justly claim ownership in natural laws, nor in any of the potentialities which nature hold for it." To those who protested that only the machine, not the natural law, was being claimed as property, George replied that the principles upon which the machines operated were intrinsic to nature. For example, a windmill was nothing more than an expression of how the force of wind pushing against a surface could produce power. Thus, every patent reduced to an ownership claim over an expression of nature.
George distinguished between two forms of labor that went into producing an invention. The first form was the mental labor of working out the operating principles of the machine — this was the labor of discovery. But since the principles existed in nature — e.g., how X amps of electricity reacts to Y ohms of resistance — they were available for discovery by anyone and could not be claimed by one man. The second form of labor was the actual construction of a specific machine from raw materials — this was the labor of production. Thus, the specific machine a man produced, such as a wheelbarrow, could be claimed as his property but he could not prevent another man from producing his own wheelbarrow.
George then proceeded to distinguish between patents and copyright, and to argue that the latter was a defensible form of intellectual property. That is, he claimed that the labor of production expended on how to say something gave a man an ownership right to that arrangement of words and not merely to one specific instance of the arrangement.
In a response that bordered on an ad hominem attack, Tucker called George "one of the most dangerous men among all of those now posing as public teachers." It was George's defense of copyright that elicited Tucker's scorn. Henceforth, the topic of intellectual property would have two well-defined threads in which patent and copyright were addressed as separate issues.
Concerning patents, Tucker agreed that the act of discovery gave a man no more right to a principle, such as electricity, than simply stepping upon a continent gave him a right to that landmass. Only the labor of production endowed ownership. And, since "the work of production is required afresh in the case of each particular thing," no particular thing can be claimed by anyone other than the individual who manufactured it.
Tucker then raised controversy by contending that the act of discovering the principle anew was not even required for someone to claim equal ownership to a specific machine for the simple reason that such independent invention might not be possible. For example, Tucker disputed whether any man living in civilization had the ability to independently invent the steam engine; if a man had seen this machine, he was thereby deprived of the ability to conceive it anew. That is, a man who had seen a steam engine could not be totally original in inventing one even if he honestly attempted to be so. "This being the case," concluded Tucker, "a patent given to him [the inventor] puts the entire world at his mercy."
Vigorous advocate of intellectual property Victor Yarros countered by claiming that there was an implied contract or obligation on the part of anyone who received another's idea to refrain from using it. After all, Tucker was not forced to absorb the idea, even a popular one. Presumably, he did so of his own free will and, thus, he voluntarily deprived himself of the ability to discover the idea anew. "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." Yarros continued, "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…. If he chooses to … 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."
Tucker responded, "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… Not so fast my dear sir! … Were you compelled to parade your invention on the streets? And why do you ask us to protect you from the consequences?"
Yarros conceded that "the man who parades a simple thing in the streets should not be protected in the monopoly of its use," but he maintained that complex creations should be protected since a duplicator would have to go out of his way "to stop and study the invention."
Tucker countered that a man with great mechanical ability could understand a machine at a glance. Thus, Yarros's standard of "complexity" made the enforcement of patent laws a purely subjective matter. A man who had to study a steam engine in order to duplicate it would be legally liable for such duplication, whereas an experienced engineer who understood the engine at a glance would be exempt. Thus, innocence or guilt would be purely a matter of the educational background or intellectual abilities of the accused.
Tucker extended his argument to include copyright as well as patents. Presumably, a man with either a photographic or phonographic memory would able to remember verbatim literature that had been placed before his eyes or read aloud in his presence. But IP advocates would be far less willing to concede points on the issue of copyright as opposed to patents.
The Question of Copyright
Although most contributors to Liberty viewed patents as discoveries of natural principles, many of them viewed copyright in an entirely different manner.
In Yarros's foray into ideological battle, he had stated, "Mr. Tucker's argument, entirely applicable to patent rights, is completely inapplicable to copyright." Poetry and novels did not exist in nature to be discovered, like the principles of a generator. Indeed, advocates of copyright argued that it was impossible for two people to write the same short story independently, even though simultaneous and independent inventions were not uncommon.
The argument for copyright was two-pronged. First, literature was pure creation rather than a discovery of existing principles. Second, independent creation of the same piece of literature was impossible.
These arguments led many of those who opposed patent laws into the advocacy of enforced copyright. Tucker had written, "The central injustice of … patent laws is that it compels the race to pay an individual through a long term of years a monopoly price for knowledge that he has discovered today although some other man … in many cases very probably would have discovered it tomorrow." This objection did not seem to apply to literature and copyright.
Nevertheless, Tucker maintained, "The same argument that demolishes the right of the inventor demolishes the right of the author." Patent and copyright were simply two expressions of the same principle.
Tucker proceeded to answer the arguments for copyright. First, he denied that literature was pure creation rather than a discovery of existing principles. Literature was nothing more than an arrangement of the alphabet according to certain principles; both the alphabet and these principles preexisted any piece of literature and were available to anyone to use in any manner. If no one could reasonably claim ownership in a particular combination of the alphabet, then no one could own a style of expression.
The possibility of independently creating a piece of literature posed more of a problem. There were documented cases of simultaneous inventions of machinery, but not of literature. Although the general ideas expressed in a book might be duplicated — as in the instance of Walras, Jevons, and Menger who all simultaneously "originated" theories of marginal utility — the duplication of the style of expression was considered beyond possibility.
Tucker staunchly defended this possibility. Even throwing letters randomly in the air a sufficient number of times would produce Hamlet, he argued; thus it was logically possible to independently reproduce a style of expression.
Moreover, Tucker contended that a style of expression was a type of idea in and of itself. He made the somewhat Platonic assertion that all combinations of letters or words existed potentially, just as all combinations of raw materials existed potentially. Thus, one man had no more right to monopolize the arrangement of words in a poem than he had to claim ownership of the arrangement of raw materials that resulted in a generator. Yarros considered such metaphysical talk to be "meaningless jargon." On the likelihood of anyone independently reproducing the exact words of an author, Yarros wrote, "Instead of being very probable, it is beyond all possibility … the method, the style, the manner, the peculiarities of all kinds due to his physical, mental and moral traits, these no other man might or would under any circumstances bring." Copyright did not prevent anyone from writing a work that reflected the ideas of an author; it merely protected the work's unique style of expression, which could not be honestly duplicated.
In response, Tucker declared that discussions of probability or possibility were "improper," both in terms of forging law about copyright or of arguing its validity as a natural right. Regarding the making of law, he maintained, "the propriety of considering degree of probability … fails to distinguish between the weighing of evidence and the forming of laws. The question of probability rightly enters into the former, but not into the latter." Besides which, the presumption of innocence would mean that an author who accused another of plagiarism would have to prove that independent creation had not occurred.
In terms of copyright as a natural right, Tucker wrote,
To discuss the degrees of probability … is to shoot wide of the mark. Such questions as this are not to be decided by rule of thumb or by the law of chances, but in accordance with some general principle…. Among the things not logically impossible, I know of few nearer the limit of possibility than that I should ever desire to publish Liberty in the middle of the desert of Sahara; nevertheless, this would scarcely justify any great political power in giving Stanley a right to stake out a claim comprising that entire region and forbid me to set up a printing press.
In short, a question of rights must be determined by the general principles, not by probability.
Yarros's response to Tucker's argument of independent discovery of style was brief and empirical rather than theoretical: "Since men began to write, no such occurrence has taken place as the production of two similar quatrains, or two ten-line paragraphs by two independent men." Unlike the patent dispute in which Yarros gave so much ground as to end up virtually agreeing with Tucker, the dispute between them concerning style remained unresolved.
Tak Kak picked up on Tucker's attack on protecting the style of literature. In an attempt at reductio ad absurdum, Tak Kak pointed to a large inconsistency in the procopyright arguments. They asserted stylistic expression should be legally protected, yet they did not extend this protection beyond literature and art. Tak Kak observed that ideas and style are expressed in almost all aspects of our lives and yet it is only with regard to patent and copyright that laws are introduced to "protect" the originator.
"If a printer may not copy new books," commented Tak Kak, "of course the shoemaker may not copy new shoes." Such a denial, of course, would be widely considered a violation of the shoemaker's liberty. "The shoemaker or printer with materials and tools in hand must copy what is in demand or starve. If he be not permitted to use his tools and his material in fashioning any goods that he knows how to fashion, and chooses to fashion, his liberty and his property are frustrated at one stroke."
Chairs, hairstyles, clothing, flower gardens, room decor, and all other forms of expression have unique styles. The style of a flower arrangement may be as unique as the style of a sonnet, yet it was only with the sonnet, with so-called intellectual property, that special privileges of legal protection were demanded. Further, to be consistent, the copyright advocate would have to admit that all speech was a unique, personal form of expression. Therefore, a man should be entitled to legal protection for every sentence he uttered so that no one thereafter could speak that arrangement of words without his consent.
The advocates of copyright came close to adopting this latter position. The procopyright Lysander Spooner had previously written, "So absolute is an author's right of dominion over his ideas that he may forbid their being communicated even by human voice if he so pleases." With lines so clearly and deeply drawn, neither side conceded many points on copyright.
Although questions of secondary importance tended to be dismissed quickly, they provide a sense of the complexity of the debate.
The anti-intellectual-property advocates attacked their opponents for being inconsistent on several points, especially on the advocacy of either a time limit or a territorial limit in law for copyright and patent. If the ownership of ideas was a natural right, critics inquired, why should it be so limited? Other natural property was not possessed only for five years, or within a certain country. If ideas were property as a chair was, why were ideas being treated differently under the law? The impact of this argument was to make many who advocated copyright and patents so uncomfortable with time or territory limits that they conceded this point without changing their core position.
Purely utilitarian arguments were introduced by labor reformer Hugo Bilgram who commented that the "only basis on which the question [copyright] must stand or fall is that of social expediency…. To this question only one answer appears possible, and this is an affirmative answer." The specific social expediency raised by Bilgram was the likelihood that no great literature would be written if authors were not granted a natural-rights protection, and natural profit, for their published work. "Were it considered proper for any publisher to copy any new work without the author's consent, the authorized publisher … could therefore in no way afford to remunerate the author for his labour. And, authors having no earthly chance of being financially remunerated by any other mean, they would simply not write."
As a counter, Tucker pointed to the great literature produced by such writers as Shakespeare, who had penned his plays a century prior to the first copyright law. Speaking as both a publisher and an author, he stated, "it is a rule, to which exceptions are very rare, that, even in the absence of copyright, competing editions are not published except of books the demand for which has already been large enough to more than reasonably reward both author and publisher for their labor." He also quoted the contemporary playwright and contributor to Liberty George Bernard Shaw, who observed, "the cry for copyright is the cry of men who are not satisfied with being paid for their work once, but insist upon being paid twice, thrice, and a dozen times over."
Tucker could have added that he did not advocate stripping authors and inventors of protection. He merely wished that protection to be extended on a contractual basis. Elsewhere, he interjected the observation, "It must not be inferred that I wish to deprive the authors of reasonable rewards for their labor. On the contrary, I wish to help them to secure such, and I believe that there are Anarchistic methods of doing so" (emphasis in original).
Tucker's appeals to his own personal experiences as a writer, editor, and publisher were difficult to refute. He referred to an earlier book published under the imprint of B. Tucker, "Why … did two competing editions of the Kreutzer Sonata appear on the market before mine had had the field two months? Simply because money was pouring into my pockets with a rapidity that nearly took my breath away. And after my rivals took the field, it came in faster than ever…. Competition in the book world is not to be shunned but to be courted."
A latecomer in the debate, Joseph Labadie, supported Tucker's point: "The question of recompense is not necessarily involved in the denial of the right to property in ideas."
The argument from expediency was also used to defend patents that were deemed to be socially necessary conditions to encourage inventors and scientists to create. Indeed, patents were presented almost as being necessary conditions for human progress itself. J. William Lloyd replied to this claim by declaring precisely the opposite to be true:
It is quite within the limits of possibility … that I could invent a hoe so superior to any other that not only all existing hoes, but all existing tools of cultivation were worthless by comparison … the practice of improved agriculture would then depend upon the manufacture and use of my hoes, yet the form of hoe thus expressed being exclusively mine, I would at once become an autocrat with tremendous power … and thus imperil human liberty without hope of redress, but I could at any time do something perhaps even worse — refuse to make these hoes altogether, and forbid others to do so, and this for all time." (emphasis in original)
Some advocates of patents found this to be a convincing argument and conceded the right of independent invention; that is, so long as an invention resulted from the independent labor of an inventor, it could be claimed as property whether or not it duplicated any one else's similar independent effort. But as IP advocate Victor Yarros explained, the onus of proof rested upon the second inventor to prove that his work had evolved independently. In other words, in asserting his claim, the second inventor would be considered guilty until proven innocent.
Tucker quickly pointed out that this reversal of legal process ran counter to all established methods of fair trial. He suggested that his sometime associate editor Yarros appealed to this argument because "to go to a jury on a question of independence of invention or authorship with the burden of proof on the complainant … would be sure victory for the defendant."
Generally speaking, all aspects of the social-expediency argument were dismissed with ease by Tucker, whose career as a professional journalist and editor gave him a facility with examples and statistics as well as a background that may have intimidated his opponents more than it convinced them. Indeed, Tucker was not above stooping to ad hominem attacks and open ridicule. Regarding international copyright, Tucker charged that the other side were authors who were arguing in their vested interests. He called them "free traders" who "declare for protection in the sphere which involves their special interest."
In an article entitled "As Usual, Protection Only for the Rich," Tak Kak added a more reasoned observation. He claimed that a proposed international copyright law, which was being championed by the natural-rights side, protected only the rich: "It allows any publisher to pirate the works of all authors who are not rich enough to invest a considerable sum in printing in this country or famous enough to get some American publisher — to do so for them."
The Debate Closes
On the whole, the debate over intellectual property within the pages of Liberty was conducted with goodwill and with a minimum of personal attacks. For example, when Tucker took exception to Yarros's use of the word "evasion" to describe one of his (Tucker's) arguments, Yarros hastened to defuse that word of any derogatory meaning. Tucker was equally, and uncharacteristically, generous: "if he [Yarros] has failed and, so far as I know it, such is the nearly unanimous verdict of the readers of Liberty, — the fault is not with the champion, but with his hopeless cause."
With this remark, Tucker announced that "the discussion of property in ideas between Mr. Yarros and myself is now closed."
Although the end of debate may have seemed abrupt or arbitrary, it is important to remember that the discussion spanned three years. It continued past its announced "official" closing date of May 1891 through to July 11 with articles by J.B. Robinson, Tak Kak, Lloyd, William Hanson and George Forrest. With the exception of a fairly neutral piece by Hanson, the contributions argued against intellectual property.
Tucker's opposition against property in ideas did not alter over the years, except perhaps to harden. He continued to view intellectual property as one of the four categories of usury through which monopolies were established by government. Although he considered the "banking (or money) monopoly" to be the most serious of the four, intellectual property — if carried to its logical conclusion — would be disastrous. One of Tucker's last statements on intellectual property remains his clearest:
Had it been in force in the lifetime of James Watt, [it would] have made his direct heirs the owners of at least nine-tenths of the now existing wealth of the world; and, had it been in force in the lifetime of the inventor of the Roman alphabet, nearly all the highly civilized peoples of the earth would be to-day the virtual slaves of that inventor's heirs, which is but another way of saying that, instead of becoming highly civilized, they would have remained in the state of semi-barbarism. It seems to me that these two statements, which in my view are incontrovertible, are in themselves sufficient to condemn property in ideas forever.
Conclusion: Patent and Copyright by Contract
Tucker and the other contributors to Liberty who rejected intellectual property as a natural right were not hostile to copyright or patent enforced by contract. Nor did they deny a man's absolute right to exclusively use whatever ideas he privately held. The point at which this exclusivity was lost, however, came when the idea was communicated without the protection of contract. Tucker insisted that a man who wrote in the public realm abandoned all claim to his property just as a man who spoke publicly abandoned claim to his spoken words.
The natural-rights side contended that the law must presume something to be property so long as it was valuable. If an idea had value, then it was presumed to be property whether publicly expressed or not. By contrast, Tucker advanced a theory of abandonment. That is, if a man publicized an idea without the protection of a contract, then he was presumed to be abandoning his exclusive claim to that idea.
If a man scatters money in the street, he does not thereby formally relinquish title to it … but those who pick it up are thereafter considered the rightful owners…. Similarly a man who reproduces his writings by thousands and spreads them everywhere voluntarily abandons his right of privacy and those who read them … no more put themselves by the act under any obligation in regard to the author than those who pick up scattered money put themselves under obligations to the scatterer.
Perhaps the essence of Tucker's approach to intellectual property was best expressed when he exclaimed, "You want your invention to yourself? Then keep it to yourself."