[tompe]

Originally Posted by Steve Jordan

Good point, Tompe. For the sake of this discussion (maybe the only chance it has to stay sane), and as long as you have Future of Ideas handy, could you quote or summarize what the Framers of the American Constitution knew about the nature of IP?

I think it the following:

IN ADVOCATING the commons, I have not argued for a world with only a commons. Not all resources can or should be organized in a commons. Not all resources must be organized as a commons just because some are. There are public streets as well as private drives, freeways as well as toll roads. The Internet links seamlessly with networks that are completely private. A world with open wires radio spectrum is perfectly consistent with a world where exclusive cable lines are reserved to those who pay. The open and the closed always coexist and depend upon each other in this coexistence.

But there are reasons why some resources need to be controlled and others do not. We've seen these reasons before, but we are in a better position now to understand them. While some resources must be controlled, others can be provided much more freely. The difference is in the nature of the resource, and therefore in the nature of how the resource is supplied.

This was the insight of many in the Enlightenment and, within our tradition, Thomas Jefferson most forcefully. Listen to Jefferson writing to Isaac McPherson in 1813 about the character of the patent power:

[1] 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 everyone, and the receiver cannot dispossess himself of it. [2] 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 lites his taper at mine, receives light without darkening me. [3] 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 at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement, or exclusive appropriation. [4] Inventions then cannot, in nature, be a subject of property.23

I've added numbers in brackets to Jefferson's text to make clear the distinct points he is making:
First, Jefferson is describing the nature of an "idea." An idea is, in the terms of the economist, imperfectly excludable. I can keep a secret from you (and therefore exclude you from the secret), but once I tell you the secret, I can't take it back. We can't (yet) erase what has entered our heads.

Second, he is describing the nonrivalrous character of resources like ideas. Your consumption does not lessen mine, as your lighting a candle at mine does not darken me.

These two points then suggest a third: that "nature" has made this world to guarantee that "ideas should freely spread from one to another over the globe." Enlightenment was in her plan.

Thus it follows that without government, in the state of nature, there would be no such thing as a "patent" since patents are granted for "inventions" and inventions, "in nature," cannot be "a subject of property."

What is striking about this passage is the glee with which Jefferson reports this fact of nature. Here is the first patent commissioner showing just why nature is against the work of the U.S. Patent Office. But the motive of his glee is the betterment of man. This fact about nature means that of all the resources, information can be the freest.

Yet obviously, Jefferson's story is not true of all resources, or even all resources in the commons. His is an account of a nonrivalrous resource.

A rivalrous resource would not permit your consumption without lessening mine. And his argument cannot be taken to mean that there should be no control that governs nonrivalrous resources. Nature may not protect them, but neither does nature erect governments. Jefferson was not arguing against patent protection; he was instead arguing against the idea that patent protection was in some sense a natural right.