Thomas Jefferson on Intellectual Property

Thomas Jefferson, whose politics might be described today as "libertarian", had this to say about intellectual property (in an 1861 letter to Isaac McPherson):

It has been pretended by some (and in England especially) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors.

It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it; but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society.

It would be curious, then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. 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 mine. 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 in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.

Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done according to the will and convenience of the society, without claim or complaint from anybody.

Accordingly, it is a fact, as far as I am informed, that England was, until we copied her the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some countries it is sometimes done, in a great case, and by a special and personal act, but generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.

Indeed, it is clear that "Intellectual Property" (IP) is an entirely artificial construct. Indeed, this is apparent from the huge weight of legal mechanisms, political force, and technological tom-foolery that our society is using to try to construct and enforce this artificial reality.

 On the other hand, "Intellectual Freedom" (IF) has been an essential element of civilization and indeed without it, there can be no freedom at all. Clearly, these two concepts are at odds. You can call information "free" if you can buy and sell exclusive rights to access it!

The following is excerpted from my book, Achieving Impossible Things with Free Culture and Commons-Based Enterprise:

The Culture of Innovation

The heritage of open source development stems largely from academia, where intellectual freedom is as fundamental an ideal as "democracy" or "freedom" is to most people throughout the industrialized West. It is this view of the concept which leads to the ideologically-based "Free Software Movement" and its preference for emphasizing user freedoms over developer process.

While this approach is probably not so good as a method of persuasion, since it relies on cultural norms that do not apply broadly across all human societies or even across professions, it has a special importance to commons-based production: it is a core belief of the people who do the most work.

Whether you share this belief system or not, you cross it at your peril. Many people regard these ideas as moral imperatives and one of the first rules of the freedom game is learning not to offend the very people who are likely to be your most important asset in success. You cannot play the game halfheartedly, hoping to create a business advantage through appropriating publicly-created work, while holding back your own.

Intellectual Freedom

Intellectual Freedom is a fundamental principle that underlies many of the beliefs shared by knowledge workers, particularly in academia, but also in a much broader area of complex engineering and scientific disciplines. Although it is often couched in ideological terms, the real point is that secrets are wasteful. Scientists learn from very early in their training the faults of suppressing information, perhaps most iconically in the person of Galileo Galilei, who published evidence supporting the Copernican theory that the planets orbited the Sun (primarily his observations of Jupiter's satellites), and was proscribed and forced to recant his beliefs by the Catholic Church.

When scientists are free to share information and regard it as a duty, they fuel the process of science, which needs to check and recheck assumptions to reach an ever more accurate understanding of the world. Engineers and inventors also share information, so as to attain ever more refined improvements to the inventions that they develop. Software developers use this freedom to find bugs and refine their software as well as to improve upon what has been written before. All of them are using it to avoid wasting time re-inventing what has gone before.


Dave Scott performs the "hammer and feather" experiment on the moon in Apollo 15, honoring Galileo Galilei -- one of the great martyrs to Intellectual Freedom due to his persecution by the Catholic Church.

Intellectual Property

The utilitarian argument for intellectual property is fairly simple: producing information costs time and effort of those who do the work, just as much as any other kind of production. Yet, unlike other forms of production, information can be freely copied, so, in a completely free market, the monetary value per copy of an information product tends to be very nearly zero.

Intellectual property systems make it easier to recoup the development costs of information products via artificially inflating the cost of sales to cover the initial investment. This mimics the natural behavior material products, where barriers to entry such as manufacturing tooling costs give the first entry into the market a chance to recoup its development costs so as to make a profit.

Of course, there are problems with the Intellectual Property idea. Perhaps the most obvious is that, in the limit, it's the just like the medieval guild system that locked Europe into a dark age for nearly a thousand years!

Suppressing the flow of information damns us to repeat the same mistakes over and over again, retarding technological progress and resulting in massive wastes of human capital. Only when inventors, authors, engineers, and scientists are able to build upon each others' works can civilization reap the renaissance rewards of a booming technological and intellectually creative society. Thus, even if and when intellectual property law is needed, it must always exist in tension against the long range benefits of preserving intellectual freedom.

An Unnecessary Evil?

Most serious creators of intellectual works in the United States know about the limited constitutional basis for Intellectual Property, but they still view it as a "necessary evil": a fictive arrangement we have to adopt in order to create intellectual works within our capitalist society. The free market, they argue, demands that we respect Intellectual Property as a trade-able good, so that we can profit by producing intellectual works.

The experiences of free software and free culture, however, have empirically disproved this idea. At the very least, we know that a free market society can produce intellectual works without the need to resort to the restrictiveness of conventional intellectual property. Free-licensing, which intentionally releases such works from these confines, produces more value from the free exchange of information than it loses to lost licensing sales and free rider problems.

In his essays, "The Cathedral and the Bazaar", "Homesteading the Noosphere", and "The Magic Cauldron", Eric S. Raymond illustrates the strategies that commercial entities and amateur developers have employed to defeat the conventional wisdom that locked-down "IP" is essential to business success [3]. I highly recommend reading these essays yourself.