Lincoln’s Lesser Legacy and Uncharted Waters for American Intellectual Property
I finally saw Spielberg's "Lincoln" this week and was gripped by the vision and courage of America's most beloved helmsman. Not surprisingly, the silver screen version of Abe's life couldn't dedicate reel time to every one of his accomplishments. Allow me to fill in a (not so glaring) gap in the account of his legacy and highlight his temporally removed yet salient take on a current controversy.
Lincoln's Patent & the Purpose of Intellectual Property Protection
I will allow the sole president to hold a patent to explain his brainchild to you directly:
I, Abraham Lincoln, of Springfield, in the county of Sangamon, in the state of Illinois, have invented a new and improved manner of combining adjustable buoyant air chambers with a steam boat or other vessel for the purpose of enabling their draught of water to be readily lessened to enable them to pass over bars, or through shallow water, without discharging their cargoes...
If you're underwhelmed with this idea, you're in good company—even company hailing from the steamboat era. Lincoln's law partner William Herndon diplomatically confessed that he found the thing "impracticable" but would not lower his opinion of Lincoln's boatmanship as a result. He added, "The invention was never applied to any vessel, so far as I ever learned, and the threatened revolution in steamboat architecture and navigation never came to pass."
Lincoln's invention may not have made the splash he wished, but his thinking on the topic of patent protection steered our country toward reasonable measures of catalyzing ingenuity in her citizens. In an 1859 lecture, Lincoln summarized the purpose of the patent system: to secure to the inventor for a limited time "the exclusive use of his invention; and thereby [to add] the fuel of interest to the fire of genius, in the discovery and production of new and useful things."
The Modern Day Fray
Over the past few months I have tuned in to the chorus of voices expressing concern that copyright regulation has wandered off course from the purpose originally articulated by the Founders and later by Lincoln.
Today critics claim that copyright protection has grown to the size of the Titanic and potentially deserves to follow her aground (fellow V&C contributors Chris Hartine and Isaac Morehouse advocate, respectively, scaling back and abolishing copyright altogether).
I recently attended a lecture and discussion with Mercatus Center scholar Jerry Brito, author of "Copyright Unbalanced: From Incentive to Excess," and libertarian law professor Tom Bell. Brito and Bell opened by pointing out that today's Copyright Act contains 17 times more words than did its original 1790 version, and has defined the "limited time" of protection as "life of the author plus 70 years," as opposed to the earlier time blocks—two years and fourteen years.
Perhaps more importantly, Brito and Bell claim that we have lost our bearings regarding the purpose of intellectual property protection. In the Founders' time, advances in "science and useful arts" were hard to come by. The new country needed maps, charts and solutions to problems like how to traverse the great mass of land Americans called home.
Books at the time were largely theological or practical. Novels were all but unknown. The "Twilight" saga had yet to grace our society and nobody could conceive of a teenager facing a felony charge for recording 20 seconds of footage on a smartphone (an anecdote that Brito highlighted). In fact, according to Tom Bell, Section 8 of the Constitution is not intended to cover movies, fiction, poetry or other "expressive works."
"There is no market failure in the creation of expressive works," added Bell, "Maybe we have enough creative expression."
Lingering Questions & the Great Unknown
While Brito and Bell make a convincing case that copyright's scope creep demands new discipline and focus, some of the more radical demands to do away with intellectual property regulation give me pause.
Perhaps it's the lingering effect of my seasons spent interning at NBC-Universal and working at a startup bringing inventions like the Vintage Vac, a battery-powered wine vacuum sealing gadget, to market, but the assertion that we have "enough creative expression" rocks me. I have witnessed a big studio and an intrepid entrepreneurial team taking on uncertainties ranging from fickle audiences to renegade Chinese manufacturers. What propels creative thinkers into the risky straits of production? The potential of a great reward: the temporary exclusive right to profit from their creations.
I can't help but wonder how culture might look if we deprioritize inventiveness. Tom Bell admits that we would likely experience casualties under his ideal minimally regulated scenario. Potential first-wave losses include big computer software packages, invention-centric small businesses and big budget films.
According to Brito, policy is nearly beside the point, moving too slowly to keep up with real time content sharing. "In the long run, none of this [policy debate] will matter." Blockbusters may not survive simply because of the nature of the Internet. Five years ago, we couldn't conceive of Spotify or Pandora as responses to music piracy. How will other sectors evolve? The policy world certainly can't provide an answer. The course ahead will likely follow emerging technology, guiding us into territory we've never imagined.
For now, perhaps we had better enjoy the likes of "Les Miserables," "The Hobbit" and the biopic of our 16th president.