Hoover Daily Report

What Jefferson Got Right and Wrong about

Monday, January 29, 2001
Image credit: 
Lukiyanova Natalia / frenta, Shutterstock

Many people believe that the Internet will make intellectual property rights obsolete. Napster is a primary example of why people believe this. The Napster Company distributes free software that allows you to download MP3 music files on-line and listen to them without paying royalties to the creators. Music artists such as Metallica and Dr. Dre accused Napster of illegally trading their songs. Pro-Napsters argue that sharing the MP3 versions of digital recordings over the Internet is part of the free exchange of ideas.

Thomas Jefferson would agree with the pro-Napsters. “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.” The public expression of an idea, Jefferson held, is no more that of the creator’s than it is that of those who acquire it. Others can use (or copy and listen to) the public expression of someone else’s idea, even modify it to the point where the originator of the idea becomes irrelevant.

Although Jefferson understood the use of ideas in the public domain, he failed to take into account the costs to the creator of developing an idea for public expression. Jefferson concluded that property rights had a zero effect on innovation, for “it may be observed that the nations which refuse monopolies of inventions are as fruitful as England [who had intellectual property rights] in new and useful devices.” In other words, creators who did not earn an income from their labor were just as likely to continue being creative as were those who benefited economically.

Metallica and Dr. Dre claim that they are losing income because of Napster in terms of both collecting royalties from MP3 versions of their recordings and CD sales in record stores. The convention of intellectual property rights in the form of copyrights and patents fosters innovation by establishing a right for the creator to be compensated for his or her labor (costs) associated with developing an idea.

Pro-Napsters argue that the Internet is changing our concept of intellectual property rights. Not only has Internet technology outstripped traditional enforcement capabilities, but it has brought into existence a cyberworld where liberty to use ideas is unrestricted. Pro-Napsters fail to recognize that intellectual property rights do not restrict liberty of use but restrain use. Pay the creator for his or her labor and keep rocking.

In a recent agreement with the music conglomerate Bertelsmann AG, Napster will institute a fee for ongoing service. The issue is not about earning an income from one’s labor but, rather, how enforcement will keep pace with technological advancements. The very industry that litigated Napster out of business is being forced into developing a fee-based service for on-line file sharing. On this point Jefferson was unequivocal—innovation is integral to the market.