The Luddite worked in the coal plant for years. Convinced that the machines destroyed his lungs, and, indeed, the lives of so many of his friends, he dedicated himself to a simpler life.
"We failed," the Luddite lamented. "They give no heed to our warnings, and technology proceeds apace. People now depend on the machines, and even enjoy them. I see no way to halt it.
"There is a way," said the Luddite's lawyer. "But first, you must paint."
"I don't understand," the Luddite asked. "How can painting stop the machines?"
"First, you paint," said the lawyer, turning a knowing smile. "Then, I write writs."
Confused, but trustful, the Luddite painted. He painted furiously. He painted from his heart and soul. He painted with his all, trying to express how the machines have ruined us. Alas, he was no artist.
The Luddite bowed his head in dismay. Despite his passions, the works were vapid, dull and derivative. He knew this at once. Every theme, every motif, every stroke came from the far more enlightened works of those who have come before him. Every idea embodied in the work was that of another.
"That does not matter," said the Lawyer. "All of that may be true, but these works are original, at least in the technical sense of originating from you. Since you have put them on that canvas yourself, we have done what we set out to do."
A work of original authorship was fixed in tangible media. A copyright was born.
The Luddite's lawyer wrote writs. He sued machines. He sued the makers of the machines, and he sued the sellers of the machines. He sued and served them all.
"Cease and desist!" he cried. "The machines must be enjoined, for they permit reproduction of the Luddite's art! They permit distribution of the Luddite's art. They permit derivation. They contribute to the infringement of a miner."
I accuse the television, for transmitting images of his work! I accuse the VCR for recording the work! I accuse the DVD! The Digital Camera! The Internet! These devices may stand, lest the Luddite's works be taken with impunity.
Counsel for the machines were indignant. "The Luddite invented nothing, designed nothing, conceived nothing," they said. "And yet the Luddite seeks to enjoin their manufacture and sale as though he had a patent on the technology itself. He is not asking us to stop copying, for we do not copy. He is asking us to stop using machines. And, to be frank, these works are wholly unworthy of protection sufficient to stop the flow of progress."
It did not matter. The work may be vapid, but it was original enough. The amount of infringement might be nominal, but one copy was enough. The elements of infringement were made out, and that was that.
The Luddite's lawyers prevailed at the District Court. He prevailed at the Circuit Court.
And then, at the last minute, the Supreme Court saved the machines from the Luddites:
"These machines do not exist to infringe -- but they also have, or at least are capable of, other substantial, non-infringing uses. They are tools of infringement, but also tools valuable for other things. If you want to stop their use, you will have to sue the users who use them to infringe"
And with that, the Supreme Court told the Luddite that he cannot regulate machines just because he paints, so long as the machines can be used legitimately otherwise.
It seemed reasonable enough. It seemed right. It was, so we thought, the law. Again, the Luddite lamented.
His lawyer, however, was not troubled. "Bide your time, my friend. The technology is moving apace, and with it, soon, there will be other laws to help us. The Digitial Millenium is upon us, and circumvention is an evil. Soon, once more, we can stop the machines."
Closely related to the notion of balancing the importance of pioneering invention against incremental improvement, is the importance of balancing the IP monopolies against the "Sciences," in the Constitutional sense of technique of writing and inventing -- the ability of facilitating those who follow not only to improve upon the works before, but to evolve new works by genuinely evolving entirely new works.
That is, not only making a "better old thing," but also "almost a new thing." Both paths are important, and lead to essential progress. This is not unlike the modes of progress identified by Arthur Koestler in "the Act of Creation," distinguishing between incremental improvements of prior works ("pink plane") and paradigm shifts nevertheless derived from prior works ("blue plane").
In each case, however, fundamental progress derives from what has happened beforehand, a principal later described by Merton as "OTSOG," an acronym for "On The Shoulders of Giants."
OSTOG has been attributed variously in modern era to Newton's famous line:
If I have seen further it is by standing on ye shoulders of Giants.and others, it would appear that the notion has been also attributed to Bernard of Chartres, in the early twelfth century, who taught that:
we are like dwarfs tanding upon the shoulders of giants, and so able to see more and farther than the ancients.
Now Bernard, of course, did not devise that grand concept on his own. Before him was Priscian, a sixth-century gramarrian, who wrote:
The younger the scholars, the more sharp-sighted.And of course, there is always Ecclesiastes 1:9-10
[T]here is no new thing under the sun. Men may say of something, 'Ah, this is new!'-- but it existed long ago before our time.
Of course, Ecclesiastes and Priscian only touched at the notion, but Bernard, standing on the shoulders of giants, put them together to arrive at the dwarf-and-giant metapor. Newton's restatement, standing on the shoulders of giants, placed in more modern tongue the metaphor in the context of scientific progress.
And the notion has long been recognized in American Jurisprudence:
In truth, in literature, in science and in art, there are and can be few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.Emerson v. Davis, 8 F. Cas. 615, 619 (C.C. D. Mass 1845) (No. 4,436) (Story, J).
And of course, my survey of these issues here is nothing new under the sun. If I have seen farther into the subject, it is because I have borrowed from the District Court opinion in Lotus Development Corp. v. Paperback Software, Int'l, 740 F. Supp. 37, 77 & n.3 (D. Mass. 1990). Not that the Judges themselves created that jurisprudence. but rather stood on the shoulders of those briefing the argument and the research of all their respective associates and clerks. Still, in turn, these things depend upon prior scholarship, such as that of R. Merton, who coined, I think, the acronym OTSOG, in his book "On the Shoulders of Giants: A Shandean Postscript.
Get it?
We are lost without being able to borrow from those who have come before us. Both for our truly pioneering invention and works, OTSOG restatements of existing works and incremental improvements on each. IP policy must carefully balance not only the interest of the author and inventor in their own works, but also the interest of society, not only in appropriating the entire invention after the public domain dedication, but in improving and OSOG.
If all we did was to give a single author or pioneering scientist strong incentives to create one breakthrough work or invention, the promotion of that small sliver of progress could hardly justify the Constitutional status and societal importance of the Intellectual Property Clause.
Intellectual Property is not merely about giving incentive by grant of monopoly, it is also about stirring and supporting the next generation of works and invention, so that those who follow can not only devise their own pioneering works, but also to build incrementally but fundamentally on the works of those who have come before.
The IP Clause recognizes this, in one way, by a Congressional injunction to grant monopoly rights only "for limited Times." After some period of time, no matter how seminal the work, no matter how valuable and earth-shattering the new invention -- every single aspect of monopoly protection associated with the protection of Copyright and Patent evaporates and is dedicated to the public domain, for use and appropriation by those who follow.
Of course, notwithstanding that wisdom of the Founding Fathers, neither the Congress nor the Supreme Court seem to be willing to treat the inunction as a meaningful constraint, having serially extended the terms of copyrights every few decades at the request of the content industries, so that no works at all have fallen into the public domain in the lifetime of many readers of these words.
What has kept the juices of authors flowing is, in part, a never-ending stream of truly pioneering innovation and insight, but also the fact that IP, such as Copyright, is clearly limited in various ways. This will be covered elsewhere in greater detail, but I note that Copyright is not only limited in time, but also in scope of subject matter (excluding ideas, as opposed to expression) and in scope of protection (excluding protection of well-established themes --or scenes a faire--, protection against fair use, and protection after exhaustion of rights by first sale) and reach of protection (with respect to who may be sued, for what, and what remedies shall be granted). Likewise, Patents are limited, not only in time, but also in scope of subject matter and protection.
The limitations are necessary to the promotion of progress, although it is not obviously why at first blush. Why not give a pioneering inventor or breakthrough playright total control of every aspect of their invention? It is because there really is no such thing as a truly pioneering invention. Nothing truly comes out of a vacuum. Every work of authorship, every invention arises from works of those who have gone before. We all owe greatly to those who have gone before.
And the pioneers are neither necessary nor sufficient for the contributions to society achieved by their works. Invention is not the same as innovation, and neither translate to greatness. The story of technology and innovation is that of incremental improvement perfecting and making practical, and sometimes even useful, the pioneering works. While the improvements may seem modest in terms of measuring how much was created, they are no less inventive or important in practice. Indeed, sometimes the monopoly granted to a pioneer, improperly managed, can be a drag on the improvements necessary to promote the progress of the useful Arts.
The Wright flying machine, by itself, would not have been enough to change life as has the airplane. It is the works of those who followed that made the airplane, and then the airline a practical reality. Of course, distinguishing between genuine incremental invention and mere free-riding of original works is at times a subtle point, but there is no doubt that a patent or copyright monopoly, if too strong, can ultimately squash, rather than promote progress. And the reasons for this are simple and as old as our society itself.
Article I, Section 8 grants Congress the power
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.While much is written both before and after the Eldred case about the operative significance of this language, that is, the extent to which this language constrains or limits, there is no doubt about its philosophy. Copyrights and Patents exist to promote the progress.
As a mere aside, it is amusing that the phrase "Sciences" refers to writing of authors, and "useful Arts," to inventions. The term "sciences," as used there, referred to the general technique of writing -- that is the capacity of authors to be authors, as opposed to the subject of their authorship.
The basic idea here is that promotion of the progress is accomplished, at least in part, by giving writers incentives to write and inventors and incentive to invent. We can debate until the end of the day whether the Copyright is necessary for authors to author -- clearly we had great writing before the Statute of Anne, but that isn't the point. The question is whether the Copyright promotes authorship and, in particular, the incentive for smart people to learn to pen beautiful writings, as opposed to going to less important endeavors, like going to law school.
The progress is promoted, in the case of copyright, by giving an exclusive right to the copying, republication and distribution of the writings. This gives publishers an incentive to publish and advertise works, an incentive to fund author's writings, and hence an incentive for authors to be come good authors. Progress is promoted yet another way: if the law is done right, authors are given broader incentives to distribute their works, disseminating the examples of their art for review by others.
And in that review, the others learn to stand on the shoulders of those who have gone before, and thus the progress is promoted. That is, so long as the monopoly does not reach so far as to stunt the growth of the next generation of artists, which brings me to the second part of this survey of IP Fundamentals: Incremental Improvement versus Pioneering Invention.