Common Knowledge: Epistemology and the Beginnings of Copyright Law

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Jonathan Scott Enderle University of Pennsylvania, [email protected]

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Recommended Citation Enderle, J. (2016). Common Knowledge: Epistemology and the Beginnings of Copyright Law. PMLA, 131 (2), 289-306. http://dx.doi.org/10.1632/pmla.2016.131.2.289

This paper is posted at ScholarlyCommons. https://repository.upenn.edu/library_papers/92 For more information, please contact [email protected]. Common Knowledge: Epistemology and the Beginnings of Copyright Law

Abstract Literary critics’ engagement with copyright law has often emphasized ontological questions about the relation between idealized texts and their material embodiments. This essay turns toward a different set of questions—about the role of texts in the communication of knowledge. Developing an alternative intellectual genealogy of copyright law grounded in the eighteenth-century contest between innatism and empiricism, I argue that jurists like William Blackstone and poets like Edward Young drew on Locke’s theories of ideas to articulate a new understanding of writing as uncommunicative expression. Innatists understood texts as tools that could enable transparent communication through a shared stock of innate ideas, but by denying the existence of innate ideas empiricists called the possibility of communication into question. And in their arguments for perpetual copyright protection, eighteenth-century jurists and pamphleteers pushed empiricism to its extreme, linking literary and economic value to the least communicative aspects of a text.

Keywords English literature, 1600-1699, Seventeenth Century, Locke, John (1632-1704), Essay concerning Human Understanding (1690), knowledge, idea, epistemology, copyright law, Cambridge Platonists, Young, Edward (1683-1765), Conjectures on Original Composition (1759), Blackstone, Sir William (1723-1780), 1700-1799, Eighteenth Century

This journal article is available at ScholarlyCommons: https://repository.upenn.edu/library_papers/92 131.2 ]

Common Knowledge: Epistemology and the Beginnings of Copyright Law jonathan scott enderle

HAT IS A TEXT? THAT QUESTION IS FRAUGHT WITH ONTOLOG- W ical uncertainty. Are texts nothing more than their physical manifestations? Or can we meaningfully speak of texts as abstractions that transcend the context of their embodiment? Lit- erary scholars and copyright lawyers have generally held diferent views on these questions. In recent decades, interest in material cul- ture has spurred many literary scholars to identify texts with speciic objects: quires of printed paper bound with fabric, board, and glue; bundles of handwritten pages tied with twine; or corporeal, albeit ephemeral, patterns of electrical signals rendered on a screen. But that approach jars with the doctrines of copyright law, which imagines texts as intangible, immaterial, and wholly indiferent to the arbitrary physical bodies—books, manuscripts, or screens—that serve as their vessels. For that reason many literary scholars since the 1980s have looked askance at copyright law, even as they have emphasized its historical signiicance; a view of texts as things that transcend their contingent material origins is bound to be met with skepticism by a critical mainstream suspicious of the metaphysics of presence and grounded in the methods of historical materialism. At its most skeptical, this mainstream regarded copyright as an ideo- logical imposture, or even as a quasi- religious institution.1 Ontological concerns like these have structured thought about JONATHAN SCOTT ENDERLE, a digital copyright since the beginnings of the Romantic period. In the late humanities specialist at the University eighteenth century, an anonymous German bookseller wrote that of Pennsylvania, is completing a book “the book is not an ideal object. . . . [I] t is a fabrication made of paper. manuscript on the epistemology of literary communication in eighteenth- . . . [I] t does not contain thoughts; these must arise in the mind of the century Britain. His recent work focuses comprehending reader. It is a commodity produced for hard cash,” on theoretical foundations of statistical while Johann Fichte argued to the contrary that a book embodies modeling in the humanities. an irreducible fragment of its author’s intellect: “each individual has

his own thought processes, his own way of from, how it is transferred, and whether it forming concepts and connecting them. . . . can ever be truly private. These questions [N]o one can appropriate his thoughts with- concerned not what texts were but what they out thereby altering their form. This latter did—the roles they played in the creation, de- thus remains forever his exclusive property” velopment, and dissemination of knowledge. (qtd. in Woodmansee 443–45). These com- By bracketing ontological concerns in peting accounts agree that the legitimacy of favor of the epistemological question What copyright depends on the relations we posit do texts do?, this essay explores an alternative between idealized forms and physical objects. intellectual genealogy of copyright law that This way of thinking postdates the rise of troubles familiar associations between liter- copyright law in England. Fichte’s Romantic, ary property, textual stability, interpretive post-Kantian idealism and the bookseller’s closure, and transcendental authorial pres- proto-Marxist materialism were both ges- ence. The material turn in literary studies tating at least eighty years after the British has seemed to repudiate those closely linked Parliament passed the irst copyright law, the ideas. The material text, subject to contin- Statute of Anne, in 1710. gency and decay, is an irreducibly noisy chan- his essay outlines an intellectual history nel of communication. The literary work it of the beginnings of copyright law unencum- embodies is not the immutable creation of a bered by these characteristically nineteenth- sovereign poetic will; it is the luid product of century questions about the ontological status multiple collaborators, iltered through a di- of the material and the ideal, which continue vided poetic consciousness and misprinted on to shape literary scholarship’s engagement fragile slips of paper. Copyright relies on the with copyright. Rather than ask what texts text’s transcendence, and it is unsettled by the are, I ask what texts do. Scholars have seen text’s corporeality. But in eighteenth-century copyright either as the beginning of a pro- Britain this neat alignment of categories did gressive new regime of intellectual property not hold. Many of copyright’s boldest advo- or as an early symptom of capitalism’s drive cates emphasized textual contingency and to commoditize ever- more-abstract entities. instability, while its most stubborn detrac- Neither of these points of view adequately tors insisted on the ixity and ideality of the characterizes the attitudes of the think- literary work. From the perspective of many ers and jurists of the eighteenth century. To eighteenth-century thinkers, literary prop- gain a clearer picture of the complex and di- erty is airmed by an authorial absence, an vergent interpretations of copyright law in indication that the text has failed to serve as a eighteenth-century Britain and their impact transparent channel of communication, fully on textual production, reproduction, distribu- connecting readers and authors. A history of tion, and reception, critics and scholars need copyright that can make sense of this surpris- to shit their attention from ontological ques- ing coniguration of concepts could produce tions to epistemological ones. What matters new insights into questions that are driving is not whether there can or ought to be such a current trends in literary thought—questions thing as incorporeal property. What matters about the relation between the phenomenal are the ways eighteenth- century individuals and the given and their role in the production conceptualized their own practices as authors and consumption of communicative matter. and readers. In some cases jurists and pam- his essay tells such a history, grounded phleteers quibbled over ontological questions, in seventeenth- and eighteenth-century epis- but their quibbles masked deeper divisions, temological debates that pitted innatism over knowledge—what it is, where it comes against empiricism. Innatists held the view 131.2 ] Jonathan Scott Enderle 291 that all individuals share the same intrinsic petualists saw in this Lockean view of ideas ideas from birth, while empiricists believed an opportunity to extend copyright protec- that ideas are produced only by experience tion indeinitely. However, by denying the ex- and are therefore unique to individuals. he istence of innate ideas, Locke destabilized the contest between these positions progressed theories of communication that were implicit from the mid–seventeenth to the end of the in innatist thought, for if we have no body of eighteenth century, beginning as a disagree- common ideas to draw on, how can we begin ment among philosophers, the most influ- to understand each other? ential of whom were a group of innatists To demonstrate how defenders of perpet- known as the Cambridge Platonists and the ual copyright and their opponents answered empiricist John Locke. It then slowly iltered this question, I irst take up the philosophical into the wider public sphere through multiple discourse around ideas in seventeenth- and channels, ultimately structuring legal dis- eighteenth- century Britain, examining the course in ways that directly inluenced mid- views of the Cambridge Platonists and Locke’s eighteenth- century copyright debates. hese refutation of their assertions. In doing so, I latter debates ostensibly concerned the dura- show how Locke challenged the dogma that tion of copyright protection; copyright per- ideas are universally communicable. I then petualists argued that copyright protection analyze Edward Young’s Conjectures on Orig- should never expire, while their opponents inal Composition to reveal how Young attacks argued that copyright protection should be the same dogma from an innatist perspective. limited in term. But as they progressed, these In the following section I describe the roles debates began to consider questions about that Locke’s and Young’s positions played in the nature of communication: Can ideas be Tonson v. Collins (1762), the case in which held privately? Can they be transferred? If so, “the basic shape of the literary-property de- what enables their transmission? And, most bate was realized” (Rose, Authors 78); this centrally, what do texts do when they com- case illustrates the multiple ways that jurists municate knowledge? conjoined innatist and empiricist views of lit- As scholars have long recognized, Locke’s erary ideas. I argue that these bodies of evi- labor theory of property played a prominent dence show that the rise of modern copyright role in these debates. Property, Locke argued, law was accompanied by a radical transfor- arises when an individual labors to create mation in ideas about communication, which something new, and copyright perpetualists linked literary and economic value to the sought to extend that reasoning from bodily least communicative aspects of a text. In- to mental labor.2 But Locke’s epistemological natists had imagined language as a natural, theories were far more signiicant to the copy- transparent extension of human thought, but right debate than the labor theory of property, eighteenth- century copyright law instead en- which could not apply to textual works unless shrined a way of thinking about what texts do they were produced by private labor, a claim that foregrounds and privileges the moments that innatists questioned. By rejecting the no- when meaning escapes us, when communication that some ideas are innate and universal, tion breaks down—moments of interruption constituting a shared intellectual commons, in the smooth functioning of language. Locke laid the groundwork for a new conception of ideas as private—and of the texts that Epistemology and the Intellectual Commons expressed them as private property. Not yet stymied by the idea- expression dichotomy en- In 1739 David Hume wrote that “the principle coded in today’s copyright law, copyright per- of innate ideas . . . is now almost universally 292 Common Knowledge: Epistemology and the Beginnings of Copyright Law [ PMLA

rejected in the learned world” (106). As sup- many other Cambridge Platonists, this innate port for this sweeping claim, he offers one rational faculty facilitated the individual pur- terse footnote: “See Mr. Locke; chapter of suit of divine truth, which one might carry power.” hat Hume felt he need only invoke out independent of any worldly authority. Locke’s name with a vague citation to make Though their primary concerns were his point suggests a widespread knowledge theological, several of the Cambridge Pla- of Locke’s argument among Hume’s readers. tonists also constructed sophisticated epis- However, this knowledge did not result in the temological theories. Henry More, in An near universal assent that Hume described. Antidote against Atheism (1653), laid out a he doctrine of innate ideas remained inlu- theory of innate knowledge that drew liber- ential ater Locke rejected it, especially among ally from Plato. “There is an active and ac- religious thinkers, who oten used variations tuall Knowledge in a man,” More wrote, “of on the doctrine to defend the universality of which . . . outward objects are rather the re- moral judgments.3 Far from being easily dis- minders then the irst begetters or implant- missed, innatism persistently posed challeng- ers” (19–20). To elucidate this claim, he ofers ing questions to the philosophers who hoped the following evocative metaphor: to reject it, and it shaped many developments in eighteenth- century epistemology. Suppose a skillful Musician fallen asleep in Innatism had experienced a surge of the ield upon the grasse, during which time popularity in the mid–seventeenth century, he shall not so much as dream any thing concerning his musicall faculty, so that in one especially among religious thinkers, when a sense there is no actuall skill or Notion nor loose group of Cambridge- educated divines representation of any thing musical in him, took up various forms of the doctrine as part but his friend sitting by him that cannot sing of their turn away from Aristotelian scholas- at all himself, jogs him and awakes him, and ticism. hough they drew from a wide range desires him to sing this or the other song, of philosophical strains, including new de- telling him two or three words of the begin- velopments in the emerging sciences, they all ning of the song, [the Musician] presently partook of some variety of neoplatonism, and . . . sings the whole song upon so slight and among historians of philosophy they are col- slender intimation: So the Mind of man be- lectively known as the Cambridge Platonists ing jogg’d and awakened by the impulses of (Hutton, “Lord Herbert” 20–34). Among the outward objects is stirred up into a more full and cleare conception of what was but im- Cambridge Platonists were Benjamin Which- perfectly hinted to her from externall occa- cote (1609–83), Henry More (1617–87), Ralph sions; and this faculty I venture to call actuall Cudworth (1617–88), John Smith (1618–52), Knowledge in such a sense as the sleeping and Nathanael Culverwel (1619–51), each of Musicians skill might be called actuall Skill whom formulated some version of innatism when he thought nothing of it. (20–21) in support of a rational theology. Culverwel described a “sacred Manuscript . . . writ by More plays on two meanings of actual: the the inger of God himself in the heart of man” first is roughly synonymous with “enacted” (34); John Smith spoke of “some radical prin- or “manifest” as opposed to “potential” or “la- ciples of knowledge . . . sunk into the souls tent,” while the second is roughly synonymous of men” (16), principles that can only be fully with “active”—in the way that actual sin, as perceived and understood by those who “shut distinct from original sin, is the product of in- the eyes of sense, and open that brighter eye dividual action. he sleeping musician’s skill is of our understandings, that other eye of the not actual in the irst sense; his mind is empty, soul” (19). For Smith and Culverwel, as for and whatever skills he has are latent and im- 131.2 ] Jonathan Scott Enderle 293 perceptible. But his skill is actual in the sec- any igures that take their distinct places, & ond sense, because it may come into being as are legibly writ there like the Red letters or a result of the activity that follows his arousal. Astronomical Characters in an Almanack”; Likewise, innate knowledge is actual rather, there is “an active sagacity in the Soul, in that it arises through the activity of the or quick recollection as it were, whereby mind ater it has been “jogg’d and awakened” some small business being hinted unto her, or “stirred up” by “outward objects.” These she runs out presently into a more clear and outward objects do not generate knowledge; larger conception” (20). Dispensing with the they only activate it. To support this claim, naive literalist conception of innatism epito- More considers geometric figures such as mized by Culverwel’s “sacred Manuscript,” circles and triangles, asking how we can have More turns to the language of hints and rec- knowledge of these igures if they do not ex- ollections, showing that partial, incomplete, ist in their perfect form anywhere in nature. or latent ideas may still be considered innate.5 The only possible answer, he concludes, is More’s innatism prefigured a more that our knowledge of these forms precedes sophisticated version defended by Ralph any experience of nature (22). his argument, Cudworth, whose works, especially the post- his description of outward objects as the “re- humous Treatise concerning Eternal and Im- minders” of preexisting knowledge, and his mutable Morality (1731), influenced many metaphoric account of sleeping knowledge eighteenth- century thinkers. he editor of the “jogg’d and awakened” all vividly recall ar- treatise, Edward Chandler, wrote a preface guments and metaphors found in Plato’s writ- positioning it as an important contribution to ings—most notably in the Meno, in which contemporary debates about ethical reason- Socrates attempts to demonstrate that “all ing and moral certainty (Hutton, Introd. xiv– learning is but recollection” by walking an xv), and like the work of other Cambridge untutored boy through a geometric proof. Platonists the treatise supported its claims By the end of Socrates’s demonstration, the with an innatist epistemological framework. youth understands the proof and agrees that However, Cudworth largely discards the met- it is valid, though Socrates has done nothing aphoric language of Culverwel, Smith, and but ask him questions. herefore, Socrates in- More, opting instead for a somewhat techni- sists, the boy “has had true opinions in him cal vocabulary: the soul possesses, Cudworth which have only to be awakened by question- repeats insistently, “an innate cognoscitive ing to become knowledge” (86). [cognitive] power . . . of raising intelligible The metaphor of sleeping knowledge ideas and conceptions of things from within suggests that both More and Plato offered itself” (75). Cudworth is careful not to use in- what historians of philosophy such as John nate to refer to ideas themselves; rather, the Yolton have called a dispositional account of mind actively generates ideas through an innateness, in which innate ideas are not im- innate power, which it can exercise without mediately present to the mind but are rather the aid of external stimuli. Cudworth’s for- part of the mind’s implicit structure, ready mulation thus avoids certain ambiguities that to be called forth by a particular set of cir- attend More’s metaphor of the sleeping musi- cumstances or through some active intellec- cian, in which innate ideas must be “jogg’d tual process.4 More writes, “I doe not mean and awakened by the impulses of outward that there is a certain number of Ideas lar- objects” and in which, though they must be ing and shining to the Animadversive faculty awakened, innate ideas are nonetheless all like so many Torches or Starres in the Firma- but fully formed beforehand, having been ment to our outward sight, or that there are learned at some point in the past. Cudworth’s 294 Common Knowledge: Epistemology and the Beginnings of Copyright Law [ PMLA

account is therefore both more innatist, in the essential contribution of individual labor that external stimuli are not a prerequisite for to the development of those ideas. the formation of innate ideas, and more dis- With his inal argument, Locke attempted positional, in that innate ideas do not exist at to associate innatism with intellectual lazi- all in the mind before it exercises the innate ness, but his arguments inadvertently over- power that enables their formation. lapped with those of the Cambridge Platonists The works of the Cambridge Platonists when it came to the notion of dispositions. provided crucial fuel for Locke’s epistemo- Locke’s arguments against nondispositional logical intervention.6 A full quarter of his Es- innatism were less efective against disposi- say concerning Human Understanding (1689) tional innatists like More and Cudworth, who was devoted to a closely argued refutation of agreed with Locke that the development of in- the doctrine of innate ideas, which he sum- nate knowledge required mental activity—as marizes as the “Opinion amongst some Men, More’s “actuall Knowledge” attests. To More hat there are in the Understanding certain and Cudworth, we are innately disposed to innate Principles; some primary Notions, act in ways that produce particular ideas, but κοιναι εννοιαι [common notions], Characters, we may be prevented from doing so. Seeming as it were stamped upon the Mind of Man, to recognize the challenge of dispositional which the Soul receives in its very first Be- innatism, Locke claimed that their position ing” (48). Locke’s language calls to mind both leads to a conceptual collapse: if the ideas that Nathanael Culverwel’s “sacred Manuscript” result from mental labor are innate, then all and the “legibly writ” characters that More possible ideas must be innate. In that case, “all disavows. In other words, Locke is describ- Propositions that are true, and the Mind is ca- ing a nondispositional version of innatism, pable ever of assenting to, may be said to be in against which he launches a threefold attack. the Mind,” writes Locke, and “[s] o the Mind is First, he challenges the “Universal Consent” [made] of all Truths it ever shall know.” Locke argument—that because “certain Principles seems to hope that his readers will ind such [are] universally agreed upon by all Man- a position counterintuitive, but the strongest kind” these principles must be innate (49)— argument Locke can ofer against it is that it by pointing out that this argument could only is “a very improper way of speaking; which, support innatism if innatists could show that whilst it pretends to assert the contrary, says no other explanation of universal consent is nothing different from those, who deny in- possible. Second, he insists that this argument nate Principles” (49–50). Locke ignores the actually defeats innatism, because no example fact that a dispositional innatist could use the of universal consent exists; even statements same line of reasoning against him; Locke’s that we might expect to produce universal own argument also leads, albeit in a differ- agreement in fact produce disagreement or ent direction, to a conceptual collapse. At this confusion in some cases. And third, he draws moment in the Essay, the dispute between in- a sharp contrast between ideas acquired natism and empiricism seems to descend into by individual pains and labor and ideas ac- a semantic disagreement, and the two epis- quired through the bounty of nature—a kind temological views appear to be substantively of cognitive commons. In an argument that equivalent. heir equivalence would reemerge recalls his discussion of private property in in later debates about copyright law. the Second Treatise of Government (1689), he The remainder of Locke’s essay offers criticizes innatists for claiming that ideas de- a detailed account of how ideas arise in the veloped through reason are merely part of a minds of individuals. Simple ideas, which natural bounty. hat claim, he argues, ignores are the direct and indivisible products of 131.2 ] Jonathan Scott Enderle 295 experience, combine to form complex ideas, Conversely, Locke’s theory of commu- which Locke further taxonomizes. Locke nication may have been too weak. His re- also subdivides experience into two “Foun- jection of the universality and innateness of tains of Knowledge, from whence all the ideas suggested that communication is not Ideas we have . . . do spring” (104), which he as straightforward a process as his precur- names “Sensation” and “Reflection.” Sensa- sors had assumed, and at times in the Essay tion denotes experience of the physical world Locke seemed even to doubt the possibility through the senses, while Relection describes of communication. He did eventually offer what might be called inward experience—the an account of communication based on uni- perception of one’s own mental processes. versal ideas, but these ideas are universal not he claim that all ideas arise from either sen- in a necessary but in a practical sense: their sation or relection has an important ramii- universality is predicated on the assumed cation for any discussion of copyright: ideas uniformity of human experience and human are strictly private, because both our sensory physiology. Should parties to a conversation experiences and our inward experiences are have diferent ideas, because either their ex- private. The concept that ideas are private periences or their physiologies radically dif- leads Locke to some startling conclusions fer, that universality fails, and with it any about language, which he hints at early in straightforward attempt to communicate. his discussion of ideas: “if it should happen hese were central issues for eighteenth- that any two thinking men should really have century copyright law because cases such as diferent ideas, I do not see how they could Tonson v. Collins (1762) and Millar v. Taylor discourse or argue one with another” (180). (1769) turned on the question of what a book If language could communicate ideas, there communicates from author to reader—and would be no such bar to discourse, but for what a book does not communicate. he term Locke language communicates no ideas at all. communicate comes from the Latin commu- Where does this leave the notion of com- nicare, to make common; and to prevail in munication? he concept of innate ideas gave court, copyright perpetualists had to argue the Cambridge Platonists a ready-made the- for a failure of communication in this sense. ory of communication, one that seemed so They had to show how the publication of straightforward and obvious that they hardly ideas might not make them common. Locke’s needed to articulate it (Dawson 619). Innate account of ideas thus appears more congenial ideas expedite the construction of linguistic to copyright perpetualism than the Cam- infrastructures, giving speaker and writer, bridge Platonists’ account does, insofar as it listener and reader access to the same cog- theorizes the possibility of communicative nitive scafolding. To understand the mean- failure. By taking a Lockean view of ideas, ing of a text, readers need only seek within copyright perpetualists were able to argue themselves the ideas under discussion; the that the transmission of texts does not entail ideas remain the same, no matter in whose the transmission of ideas; far from being un- mind they appear. But perhaps this theory of protectable, as in modern copyright law, ideas communication was too strong: if everyone were the inalienable property of their author. already has access to exactly the same ideas, However, Locke’s epistemology was not the why is communication ever necessary? Keep- only option copyright perpetualists had. It ing in mind Locke’s emphasis on the labor was also possible to imagine a version of in- required to produce ideas, one might argue natism that entailed a similar communica- that communication is necessary precisely tive failure: the innatism espoused in Edward because some ideas are not innate. Young’s Conjectures on Original Composition. 296 Common Knowledge: Epistemology and the Beginnings of Copyright Law [ PMLA

Edward Young’s Synthesis stance here allies him with Locke and puts him at odds with followers of the Cambridge Young’s Conjectures (1759) has oten been re- Platonists such as Joseph Butler and Anthony garded as a seminal text in the history of au- Ashley- Cooper, third earl of Shatesbury, both thorship. hrough his writing on originality of whom viewed conscience as an innate fac- and genius, Young influenced the course of romanticisms in Great Britain and Germany, ulty of moral judgment.8 By the time Young and in doing so he strengthened the case for wrote Conjectures, conscience had become authorial copyright. As Martha Woodmansee irmly associated with Shatesbury’s and But- has argued, ideas popularized by Young’s essay ler’s antiempirical view, and Young uses the (which was translated into German the year of term accordingly: “With regard to the Moral its publication) bolstered a growing demand world, Conscience, with regard to the Intellec- for copyright legislation among German au- tual, Genius, is that God within. Genius can thors of the Romantic era (430). Likewise, set us right in Composition, without the Rules Mark Rose inds Young’s thoughts congenial of the Learned; as Conscience sets us right in to the ascent of proprietary authorship in Life, without the Laws of the Land” (30–31). Great Britain, insofar as they anticipate “the Conscience is “that God within,” fully present organic analogy of the romantics” (“Author” in individuals before they learn institutional 61). But both Rose and Woodmansee associate rules and at times perhaps even opposed to Young with copyright law by reading Conjec- those rules. By characterizing conscience as a tures as a proto- Romantic text, and their argu- faculty that guides us “without the Laws of the ments must therefore recontextualize Young’s Land,” Young echoes Shatesbury’s critique of essay geographically or temporally. When one the claim, made famous by homas Hobbes, reads Conjectures in the immediate context of that the state is the only guarantor of individ- its publication, however, a diferent picture of uals’ moral behavior. Conscience, for Young Young’s relation to copyright emerges. Forty and Shatesbury, precedes institutions of law; years before Wordsworth took up the “organic likewise, Young insists, genius precedes insti- analogy” at the heart of Young’s essay, Conjec- tutions of learning. tures read not as a proto-Romantic text but as a In addition to being innatist, Young’s post- Platonic text—a modulated continuation conception of genius is dispositional. A writer of ideas that Cudworth and other Cambridge “may possess dormant, unsuspected abili- Platonists had developed and defended a cen- ties,” a fact that “is evident from the sudden tury before. In short, Young was an innatist. eruption of some men, out of perfect obscu- he linchpin of Young’s innatist argument rity, into public admiration, on the strong in Conjectures is another analogy: between impulse of some animating occasion; not genius and conscience. Conscience denoted more to the world’s great surprize, than their “inward knowledge,” and in the early to mid– own.” Genius hides its gits, like More’s sleep- eighteenth century it was at the center of a dis- ing musician, “till awakened by loud calls, pute over the innateness of the faculty of moral or stung up by striking emergencies.” Until judgment.7 As late as 1744, Jonathan Swit had then, a writer may remain “scarce less igno- insisted that conscience “properly signiies the rant of his own powers, than an Oyster of its Knowledge which a Man hath within himself pearl, or a Rock of its diamond” (49–50). Like of his own Thoughts and Actions” and that his philosophical precursors, Young preempts such knowledge is useless for the purposes of any argument that genius must not be innate moral judgment unless supplemented by the because it is not apparent from birth. Genius study of scripture (24). Swit’s quasi- empirical need not be visible to be present. 131.2 ] Jonathan Scott Enderle 297

Elsewhere, though, the difference be- thor; that is, of one who (to speak accurately) tween Young’s innatism and the innatism of thinks, and composes; while other invaders Shaftesbury and the Cambridge Platonists of the Press, how voluminous, and learned becomes more apparent. he Cambridge Pla- soever, (with due respect be it spoken) only tonists had held that innate ideas were also read, and write. (54) universal; similarly, Shatesbury insisted that his passage marks a critical shit from the our “Sense of Right and Wrong” is a “first universalist innatism of the Cambridge Pla- Principle in our Constitution & Make” (44), tonists to an exclusionary innatism—a novel and he argued that the universality of con- version of innatism that is uniquely suited to science facilitates a natural process of com- form the basis of a property claim. One of the munity formation. But for Young genius is hallmarks of property, as Joseph Yates would not universal and does not unite individuals insist a decade later in the milestone copy- into a community; genius creates distinc- right case Millar v. Taylor, is that it grants tions between them. “Let thy Genius rise,” he “sole and exclusive Enjoyment” of an object commands, “(if a Genius thou hast)” (53)— (Question 73). But if ideas are both innate and and much of Young’s essay is dedicated to universally held—even if only potentially— the problem of discovering whether one has then such exclusive enjoyment is contrary genius or not. Combined with Young’s dis- to their nature. Young’s theory of genius by- positionalism, the belief that not all writers passes this problem, articulating a propri- have genius produces a belletristic Calvin- etary Platonism in which some ideas are ism; genius may emerge without prior indi- indeed exclusively possessed. Anyone can im- cation, leaving would- be writers of genius to itate a work of genius, but imitation amounts constantly seek signs of their place among the to nothing more than a loan: “Learning is literary elect. “Know Thyself. . . . Dive deep borrowed knowledge,” while, by contrast, into thy bosom,” exhorts Young, and “learn “Genius is knowledge innate, and quite our the depth, extent, bias, and full fort of thy own” (36). This incommensurable gap be- Mind” (53), and if genius is to be found there, tween imitation and creation means that the “hyself so reverence as to prefer the native “noble title of an Author” is nontransferable, growth of thy own mind to the richest import a fact that Young reiterates through another from abroad” (54). But this holds only if one organic metaphor: “An Original author is does indeed have genius: “as nothing is more born of himself, is his own progenitor, and easy than to write originally wrong; Originals will probably propagate a numerous ofspring are not here recommended, but under the of Imitators, to eternize his glory; while mule- strong guard of my irst rule—Know thyself” like Imitators, die without Issue” (68). (61). Without the support of genius, original- Young’s proprietary Platonism stands ity is a handicap, a literary vice. in stark opposition to many of Locke’s ideas. It is in the context of this stark divide For example, Locke’s critique of innatism as between literary haves and have- nots that a product and propagator of intellectual la Young links genius most visibly to property. - he writer of genius who reverences himself, ziness applies to Young’s arguments about Young asserts, genius just as well as it does to any of the Cambridge Platonists’ arguments about “ac- will soon ind the world’s reverence to follow tuall Knowledge” or “innate cognoscitive his own. His works will stand distinguished; power.” But despite their diferences, Young his the sole Property of them; which Prop- and Locke agree that at least some kinds of erty alone can confer the noble title of an Au- ideas are exclusively held by the mind that 298 Common Knowledge: Epistemology and the Beginnings of Copyright Law [ PMLA

creates them and are strictly nontransfer- trade. Nonetheless, the case was historically able—or, one might say, incommunicable. To significant because it featured two figures be sure, ideas are incommunicable in Young’s who would later participate in the precedent- and Locke’s accounts for different reasons; setting cases Millar v. Taylor and Donaldson but both accounts hold out the possibility that v. Beckett (1774). William Blackstone, the au- authors retain something when they commu- thor of the inluential Commentaries on the nicate through a work. hat possibility of re- Laws of En gland (1765), was a counsel for the tention formed the basis of the property claim plaintifs in Tonson v. Collins and went on to that William Blackstone and his allies made represent another London bookseller in Mil- in the mid- century copyright cases. lar v. Taylor and to defend literary property before the House of Lords as one of twelve advisory judges in Donaldson v. Beckett Copyright and Communication (1774). Joseph Yates, the defendant’s counsel In April and May of 1759, the banker and in Tonson v. Collins, would take a place on the bookseller Benjamin Collins printed, pub- Court of King’s Bench and write the dissent- lished, and sold copies of Joseph Addison ing opinion in Millar v. Taylor, setting forth a and Richard Steele’s Spectator. Collins was critique of literary property that remains sa- not the copyright holder; Jacob Tonson had lient ater more than two hundred years. purchased copyright in the work forty-seven The case was heard twice, in 1761 and years before. But since the only applicable 1762, before the Court of King’s Bench, Lord copyright law, the Statute of Anne (1710), Mansfield presiding as chief justice. Alex- protected works for twenty- eight years, Col- ander Wedderburn argued for the plaintifs lins could not be prosecuted under it; as far at the irst hearing and attempted to restrict as the statute was concerned, the work had the property claim of authors to the proits of entered the public domain. Nonetheless, publication. his was, he claimed, an incor- Tonson’s heirs, his sons Jacob and Richard, poreal property right, but only in the sense brought a suit against Collins, claiming that that, for example, the right of way across a he had invaded their literary property. The tract of land is incorporeal; such incorpo- Tonsons argued that they retained copyright real rights in corporeal entities were by this in the Spectator despite the limited term of time fairly well established in the common the Statute of Anne: copyright, far from be- law. “When I speak of the Right of Property,” ing the temporary consequence of a statutory declared Wedderburn, “I mean in the Proits monopoly, was literary property in the fullest of his Book; not in the Sentiments, Stile, &c” sense. Like any other property, they main- (Tonson v. Collins [1761] 302). Wedderburn tained, it was protected in perpetuity by the was hoping to sidestep the argument that sen- common law, independent of any statute, and timent and style are incorporeal, impossible was recognized not only by ancient usage but to possess exclusively, and therefore incapable also by reason and natural right.9 of supporting any property right whatsoever. The plaintiffs in Tonson v. Collins were However, when the case was heard a second not the irst to make such an argument, and time, in 1762, William Blackstone took Wed- the case did not set a lasting precedent; the derburn’s place and made a much bolder Court of King’s Bench refused to consider claim. Not content to sidestep the argument it further after finding that the plaintiffs that sentiment and style are incorporeal and and defendant were colluding in an effort impossible to possess, Blackstone attacked it to produce a ruling favorable to themselves head-on. Quoting Edward hurlow, the bar- and their fellow booksellers in the London rister who had argued for the defendants 131.2 ] Jonathan Scott Enderle 299 in 1761, Blackstone insisted that a “‘literary bor—that is, sensation and relection in the Composition, as it lies in the Author’s Mind, Lockean sense—and the right of property in before it is substantiated by reducing it into ideas arises naturally from that fact.11 Black- Writing,’ has the essential Requisites to make stone reinforces this line of reasoning with a it the Subject of Property” (Tonson v. Collins subtle shit in diction over the course of his [1762] 322).10 Although Blackstone then refers first argument. Initially, the word he uses to Locke’s labor theory of property, the essen- most often to refer to mental equipment is tial foundation of his argument is a Lockean idea, but as he continues he begins to favor view of ideas. While a literary composition another term: sentiment. Two paragraphs after asserting that we communicate by “cloath- lies dormant in the Mind, it is absolutely in the ing our conceptions in Words, the only Means Power of the Proprietor. He alone is intitled to to communicate abstracted Ideas,” he per- the Profits of communicating, or making it forms a nearly parallel substitution: “Words public. he irst Step to which, is cloathing our are the Vehicle of Sentiments” (323; italics conceptions in Words, the only Means to com- mine). He then insists that sentiment is the municate abstracted Ideas. Ideas drawn from external Objects, may be communicated by essence of literary property, stating that “[t] he external signs; but Words only, demonstrate Sentiment therefore is the Thing of Value, the genuine Operations of the Intellect. (323) from which the Proit must arise” (323–24), though just a few paragraphs earlier he had In this passage, the philosophical assump- argued that literary property is founded on tions that underlie Blackstone’s argument “Occupancy in Ideas” (321). Blackstone ap- immediately become clear. His distinction pears to be using the words idea and senti- between “Ideas drawn from external Objects” ment interchangeably, but to treat the two and “abstracted Ideas” parallels the dichot- terms as mere synonyms misses a range of omy developed by Locke and widely deployed important distinctions. When one examines in his Essay concerning Human Understand- the etymology of the two words, Blackstone’s ing (1689) to explain how abstractions such as shit appears strategic: sentiment is based on numbers or geometric forms can arise from the same Latin root as sense, and in the eigh- sense impressions. hat parallel alone indi- teenth century it was still occasionally used cates that Blackstone was drawing not only to refer to sense impressions. In his Enquiry from Locke’s political theory but also from concerning Human Understanding (1748) his epistemological theory. More broadly, David Hume used inward sentiment and out- this passage shows that Blackstone cannot ward sentiment to refer to roughly the same be thinking of ideas in an innatist way. he concepts that Locke had called relection and very notion that ideas in the mind are “abso- sensation, thus associating the term sentiment lutely in the Power of the Proprietor” directly with private experience. By contrast, the ety- contradicts any theory holding ideas to be mological root of idea is the Ancient Greek universal and innate. Even if an idea is imme- ίδέα, a term Plato had used to denote eternal diately present in just one mind, the mind of forms. Insofar as it was linked to a philosoph- the so-called proprietor, a dispositional form ical tradition claiming that all mental objects of innatism would hold that it is potentially are held in common, idea was a troublesome present in the minds of all others; the “pro- word for Blackstone, and he learned quickly prietor” could do nothing to prevent any of to eschew it. Blackstone’s use of sentiment also them from acquiring it on their own. placed him in a complex tradition of thought For Blackstone, then, ideas are the prod- that attempted to reconcile theories of uni- uct of individual experience and mental la- versal moral knowledge and judgment with 300 Common Knowledge: Epistemology and the Beginnings of Copyright Law [ PMLA

Lockean empiricism. It is beyond the scope of stone requires a model of communication, or this essay to describe the full semantic range at least of reading, diferent from anything we of the term, but just two years before Black- have encountered so far. In fact, Blackstone stone made his argument, Adam Smith had hints at such a model in his rebuttal of Yates, used sentiment to describe a model of emo- whose counterargument exposes some of the tional contagion and communicability in his potential diiculties of Blackstone’s position. heory of Moral Sentiments (1759). hat model In Tonson v. Collins (1762), Yates founds depended on the Lockean assumption that his argument against literary property on an all human beings share certain physical and innatist understanding of communication. mental structures; for Smith, as for Locke, He begins by conceding that mental labor if that assumption fails, so does communi- does grant a property right. However, “this, cation. Smith’s arguments were influenced and every other Kind of Property may be ren- by similar claims made by Hume and Fran- dered common, by the act of the Proprietor,” ces Hutcheson, both of whom had reframed and publication is the act of rendering com- moral judgments as direct experiences by mon one’s mental property: “the Author has positing the existence of a “moral sense” sub- a Property in his Sentiments, till he publishes ject to the same Lockean assumption (Carey them. . . . But from the Moment of Publica- 103). In each of these cases, sentiment signi- tion, they are thrown into a State of universal ies a break with innatism by acknowledging Communion.” Two English cognates of the the possibility, however remote, that our ideas Latin communis, common and communion, may be radically irreconcilable. foreshadow the direction of Yates’s argument. As these complexities illustrate, Black- He then considers the prerequisites for a stone’s account of ideas corresponds closely to property claim, insisting that an item of prop- Locke’s, but not perfectly. Blackstone speaks erty must be capable of “separate and exclu- of ideas being communicated, whereas for sive Enjoyment” and that “actual Possession is Locke communication may occur, but ideas not always necessary, yet potential Possession are never themselves communicated. We is” (333). hough he does not say so explicitly, might assume that when he speaks about Yates implies that incorporeal rights such as communication Blackstone means just what the right of way across land arise from the Locke does—that is, communication not of possibility of exclusion. Right of way exists, in but about ideas—yet this interpretation poses short, because it may be enforced or denied by certain problems for Blackstone’s argument. corporeal means. But this is not so of ideas: Ater all, if communication does occur in the Lockean sense, then by Locke’s explicit asser- he original MS. is not, nor ever was, in the tion both parties must already have the same Hands of the Defendants. he Books sold are ideas. Even more troublesome for Blackstone’s not, nor ever were, the Property of the Plain- tifs. he Paper and Ink belonged to the Defen- argument is the fact that for Lockean com- dants. All the Plaintifs can claim is, the Ideas munication to occur between readers and an which the Books communicate. hese, when author, the readers must have come by their published, the World is as fully in Possession ideas the same way the author did—through of, as the Author was before. From the mo- their own mental labor. Why, then, should ment of Publication, the Author could never the author have any more right to those ideas conine them to his own Enjoyment. (334) than the reader? On the other hand, if no communication between readers and author Ater the physical book is sold, nothing cor- occurs, it is diicult to surmise how a literary poreal remains for the author or publisher to work could have value at all. Clearly Black- lay claim to; and because Yates takes an inna- 131.2 ] Jonathan Scott Enderle 301 tist view of communication, he insists that the property of their creators, having been gen- act of communicating an idea destroys any erated by individual experience and mental possibility of exclusively possessing it. Filling labor. A work is not a collection of its author’s out Yates’s argument from the perspective of ideas but rather a key that opens a passage a dispositional innatist and universalist, we through its author’s mind, giving readers a might say that the author’s ideas were already particular kind of access to those ideas. No potentially in the possession of all readers and ideas ever change hands, but, just as one that by publishing them the author actual- might stroll along a fenced path to view the izes that possession, so that no further legal terrain beyond, readers are able to experience distinction can be made between the author’s the author’s ideas and to develop ideas of their possession of the ideas and readers’ possession own from that experience. A key is alienable, of them. Since the author can no longer exer- but the lands to which it grants access remain cise any form of exclusive possession over the the property of their owner, and it is a breach ideas, they can no longer be subject to prop- of that property to copy the key without per- erty law, which, Yates reiterates, “acts only mission. Likewise, a work is alienable, but the upon Subjects, where there is a Possibility of ideas it grants access to remain the property separate and exclusive Enjoyment” (334). of their creator; therefore one may possess a Yates’s repeated emphasis on “separate work without possessing the right to copy it. and exclusive Enjoyment” indicates that his Not only does Blackstone’s analogy clar- concern with corporeality and incorporeal- ify these relations, it also hints at a model of ity has more to do with the speciic problem reading that might help Blackstone defend of exclusion than with a vague metaphysical literary property from a Lockean standpoint; qualm about incorporeal property. However, but this is a model of reading as noncommu- Blackstone’s rebuttal attacks a straw man, nication. In this model the value of the work focusing only on Yates’s discussion of corpo- comes not from the ideas that it communi- reality and entirely neglecting his argument cates but from the experience that it enables about exclusion. Indeed, neither Blackstone readers to have. Young, too, takes such a view nor Yates seemed to fully realize that their of literary value: “he mind of a man of Ge- disagreement arose from two dramatically nius is a fertile and pleasant field,” and the diferent deinitions of the word idea. How- work of genius “opens a back- door . . . into ever, Blackstone does ofer one analogy that a delicious Garden of Moral and Intellectual strikes near the heart of their disagreement. fruits and lowers; the Key of which is denied Disputing Yates’s claim that a published work to the rest of mankind” (9, 5). These fruits is, “like Land thrown into the Highway . . . a and flowers never change hands; the plea- Git to the Public,” Blackstone counters that sure of observing them is enough. he work publishing a book “is more like making a Way is an “Amusement” and a “Refuge”; through through a Man’s own private Grounds, which it the reader is “quieted” and “refreshed” and he may stop at Pleasure; He may give out a takes a “pleasing Pause” (5–6); but does the Number of Keys, by publishing a Number of work communicate anything? Perhaps so, but Copies; but no Man, who receives a Key, has whatever is communicated cannot be passed thereby a Right to forge others, and sell them on; it is not valuable to anyone but the recipi- to other people” (341). In this analogy, the re- ent, who cannot transmit the same experience lations among author, idea, work, and reader on to another. he pleasures of reading a work in Blackstone’s view become momentarily of genius simultaneously prove the richness crystallized. According to Locke, ideas are of genius and the impoverishment of passive not held in common but are the inalienable reception, and they leave little possibility for 302 Common Knowledge: Epistemology and the Beginnings of Copyright Law [ PMLA

intellectual reciprocity. For Young anything Suppose two diferent men compose tables of communicable is, at best, mere learning— interest; if both their calculations are exact, “borrowed knowledge” available for loan by they must, according to the rules of arithme- anyone and therefore worth little (36). tic, turn out to be the same. his observation If Blackstone’s argument is to be sound, will apply to most kinds of tables or calculations, as on life-annuities, logarithms, alma- he must agree with Young on this: for com- nacks, &c. If the irst publishers of any such munication to occur, whatever is commu- works were to have a perpetual monopoly, how nicated cannot be literary property—even absurd would such a position be, and how un- from a Lockean perspective on ideas. For if just to the rest of mankind! (Information 19) readers’ ideas are indeed the same as the author’s ideas, as Locke insists is necessary for In a line of reasoning reminiscent of the argu- communication, and if readers produce them ments that Smith, Culverwel, and Cudworth by their own labor, as the author did before had made a century before, Donaldson’s them, then there remains nothing to be held counsel argued that the universal nature of as property. At this point, the Lockean model mathematical truths—whether our knowl- of communication begins to look similar to edge of them is founded on empirical obser- the model of communication implicitly pro- vations or on innate dispositions—directly posed by the Cambridge Platonists. Ideas may contradicts the logic of literary property. he come from experience rather than from an possibility of communication is founded on “innate cognoscitive power,” but they are ef- these truths, and thus if communication is fectively common property either way, at least possible, literary property cannot exist ex- potentially, because otherwise no communi- cept as a statutory monopoly. There is only cation could occur. he equivalence between one situation, Donaldson’s counsel argued, innatism and empiricism hinted at in Locke’s “in which it can be igured that an author re- Essay begins to reassert itself here. As long as tains the exclusive enjoyment of his ideas, af- Blackstone holds on to the notion of commu- ter having published them, viz. if he writes in nication, he is caught in a double bind—an an unknown language, or character invented inescapable consequence of the paradox of by himself, and which he alone can decypher” communicable property. (Information 11). he regime of literary prop- Almost eight years after Tonson v. Col- erty is a regime of encryption, in which the lins, Yates and Blackstone again defended reader’s understanding of the text is endlessly opposing positions in the literary-property deferred but the possibility of understanding debate. This time Yates stood on the other remains, and in which the proprietary work is side of the bar, as one of the four justices in held forever just out of its reader’s grasp. Millar v. Taylor. However, as the sole dissenter in the case, he stood alone, having failed to Incommunicable Things sway the court against the idea of literary property. he center of the literary-property At the beginning of his argument, Donald- debates shited from the En glish to the Scot- son’s counsel in Hinton v. Donaldson turned tish courts, where an innatist view of ideas to a question that seemed to involve corpo- continued to play a role. Hinton v. Donaldson reality. “Property,” he argued, “is deined to (1773), the case in Scotland that contradicted be, jus in re; and there can be no property Millar v. Taylor, set the stage for the estab- without a subject or corpus, to which it re- lishment of the public domain in Donaldson fers” (Information 5–6). Like Yates, he pro- v. Beckett (1774). In Hinton, Alexander Don- ceeded to argue that this is not an arbitrary aldson’s counsel made a familiar argument: restriction; rather, it arises because incorpo- 131.2 ] Jonathan Scott Enderle 303 real entities cannot be exclusively possessed. bears some relation to a set of phenomeno- For that reason, the role of corporeality in his logical concepts articulated by Edmund Hus- argument is secondary. If we could create an serl in his Logical Investigations (1900). In an incorporeal thing that could be possessed by argument crucial to his own project and to one person, to the absolute exclusion of all its inluence over later continental philoso- others, then there could be no objection to phy, Husserl distinguishes between two par- incorporeal property along these lines. But tially overlapping kinds of signs—those that Donaldson’s counsel dismisses that possibil- indicate and those that express. Some signs ity in his progression from res to corpus. He merely indicate by associating one thing with began with a deinition of property as jus in another in a way that is not only noncausal re, right in a thing—a more vaguely deined but also not yet linguistic; others communi- entity than the corpus, the body. By slipping cate meaning in its fullest sense by both ex- from thing to body, Donaldson’s counsel as- pressing and indicating; and still others only sociated thingness with the possibility of express, without indicating or communicat- exclusive possession, while simultaneously ing anything. As an example of the last kind discounting the existence of bodiless things. of sign, Husserl ofers the soliloquy: “here is However, as I have argued, Locke’s epis- no speech in such cases,” he writes, “nor does temology had introduced the possibility that one tell oneself anything” (280). Communi- ideas might indeed be bodiless things—in- cation demands telling, and how could we corporeal entities that could be possessed ex- possibly tell our self-present selves something clusively. In this account, ideas are, at their we do not already know? Viewed from some foundation, mute; they cannot be transferred angles, Blackstone’s noncommunicative ex- or exchanged, and there is no marketplace of pression looks much like a Husserlian solilo- ideas. Locke backs away from this point of quy. he copyrighted work takes the guise of view by arguing that because we have similar an author’s self-directed speech; an audience bodies and minds, and because we live in the may listen in this case, but the author’s words same physical world, we must all have similar have no clear indicative force. ideas; and so even if our ideas themselves re- From there, this hypothetical genealogy fuse to speak, we can talk about them and tell might follow Jacques Derrida from his rejec- one another how to re-create them through tion of Husserlian self-presence, in Voice and sensation and reflection—through experi- Phenomenon (1967), to his later discussion ence.12 But copyright perpetualists welcomed of “the truth of the copyright and the copy- this refusal to speak, making it the basis of right of the truth” in “Limited Inc a b c . . .” a property claim with respect to texts that, (1977 [30])—thus returning to the point from paradoxically, express ideas without commu- which my discussion began. Derrida might nicating them. emerge as a rescuer, who by rejecting Husser- In a diferent kind of essay, I might have lian soliloquy also rejects the dangerous legal traced through these latter two perspectives a arguments that created, for a brief period, genealogy of speech and experience—of voice a legal regime of perpetual copyright.13 But and phenomenon—to the twentieth century these subsequent moves risk diverting our and into the present day. Both perspectives attention from current discussions of phe- are opposed to an innatist point of view that nomenological diversity that give new force tries to convince us of the transparency of all to Blackstone’s reasoning. Recent years have communication—as if by talking to one an- seen several waves of criticism and theory at- other we are only talking to ourselves. But to- tentive to communicative disavowal. Specu- gether they introduce a new opposition that lative realists have reimagined scientific 304 Common Knowledge: Epistemology and the Beginnings of Copyright Law [ PMLA

enterprise as a struggle to force recalcitrant not the separability of style and sentiment but things to indicate what they have so far only their necessary unity in well- crated writing: expressed in secret; scholars in animal studies have explored the possibility that other Expression is the Dress of hought, and still species may inhabit a world of meaning in- Appears more decent as more suitable accessible to us; and afect theorists have de- A vile Conceit in pompous Words exprest, Is like a Clown in regal Purple drest; fended the rights of human beings to linger For dif’rent Styles with dif’rent Subjects sort, on the aspects of personal experience that As several Garbs with Country, Town, and resist communication and absorption into a Court. (lines 318–23) shared horizon of the given. Blackstone’s arguments show us that these ways of thinking For Pope, and perhaps still for Blackstone, could have proprietary ramiications and that style and sentiment were distinct but closely we must pursue them in a way that balances linked—not dichotomous. By reading these our desire for an open society with our de- moments in Blackstone’s argument as an- fense of a right not to speak. ticipations of modern legal doctrine, we In yet another kind of essay, I might gloss over much of the texture of eighteenth- have traced a different genealogy, linking century thought about copyright. these early ways of thinking about idea and Instead of projecting the present back expression to modern copyright law. In the onto the past, we might study the beginnings twentieth century, it has become an estab- of copyright to think about ways of relaxing lished doctrine in the Anglo- American con- the rigid legal distinction between idea and text that copyright protects not the ideas expression—to reconceive that distinction in but the expression of the ideas in a text. his terms not only of writing but also of reading, doctrine attempts to distinguish imitations imagining reading as a mode of expression as that directly copy specific portions of text, well as a mode of reception—and to see in the characters, or plotlines from those that bor- course of development of these ideas alterna- row only broad outlines, general archetypes, tives to both the modern copyright regime or global plot structures. On a cursory view, and the critical commonplaces that we have the diferent ways of thinking about commu- inherited. My approach to the early years of nication that I’ve discussed might look like copyright focuses on the broad range of an- ancestors of this idea- expression dichotomy. swers that eighteenth- century thinkers ofered But although there were glimmerings of that to the question What do texts do? In natists distinction in eighteenth- century court cases, emphasized the universality of ideas and con- modern commentators have been too quick ceived of texts as tools of communication that to read those glimmerings as evidence of a functioned smoothly and transparently to stable and well-theorized dichotomy. When link authors to readers; empiricists drew at- William Blackstone asserted in Tonson v. Col- tention to ways those tools broke down, with lins that “style and sentiment are the essen- the hope of repairing them; and copyright tials of a literary composition,” his use of style perpetualists embraced the tools’ breakdown hints at a modern understanding of copyright as a way of turning ideas and the texts that as protected expression. But there are reasons expressed them into things. For expediency to doubt that Blackstone is using style in this I have presented these as three competing modern sense. By describing the process of points of view, but my intention has not been composition as “cloathing our conceptions in to embrace one of them while discarding Words,” Blackstone echoes lines from Pope’s the others. Instead, I propose that all three “Essay on Criticism” (1711) that emphasized articulate useful ways of thinking about the 131.2 ] Jonathan Scott Enderle 305 encounters between author, text, and reader. 13. he precedent set by Millar v. Taylor stood from For copyright perpetualists, an uncommuni- 1769 to 1774. cative text speaks to us of foreign experiences in an alien language; for empiricists, a text WORKS CITED speaks in a half- learned tongue, tantalizing in its partial coherence; and for innatists, the Carey, Daniel. “Hutcheson’s Moral Sense and the Prob- text whispers familiarly in our ear, transpar- lem of Innateness.” Journal of the History of Philoso- ent in its meaning and obvious in its intent. phy 38.1 (2000): 103–10. Print. Our paths through these modes of encounter Cudworth, Ralph. A Treatise concerning Eternal and Im- mutable Morality. Ed. Sarah Hutton. New York: Cam- need not be unidirectional, nor should they bridge UP, 1996. Print. be, since each is latent in the other two. Only Culverwel, Nathanael. An Elegant and Learned Discourse by a long series of turns and returns through of the Light of Nature. Printed by T. R. and E. M. for these modes do we learn what texts do. John Rothwell. London, 1652. 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