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Continuing Saga, p. 1
The Continuing Saga of Thomas Jefferson and the InternetTalk Delivered at The David Library Lecture Series
on “The Unfinished Constitution” Washington Crossing PA
 October 14, 2011David G. Post
I want to cover a lot of ground tonight, and I want to make some connections that mightbe new to you. I want to focus on two parts of our Constitution, one familiar, one not-so-familiar. The familiar one is the provision prohibiting Congress from making any law "abridgingthe freedom of speech or of the press"
 –
the First Amendment. The not-so-familiar one is theprovision granting to Congress the power
“to
promote the Progress of Science" by "securing toAuthors the exclusive Right to their Writings"
 –
the so-called "Copyright Clause" of Article I Sec.8.The interplay between these two provisions
 –
one a grant of power to the government,the other a prohibition on
government’s
use of power
 –
is complicated, fascinating, and evenprofound.To begin with, there is, and always must be, tension between them.
It’s built in
, as itwere. Copyright law restricts free expression
 –
indeed, that is the very point of copyright law.
That’s its job.
Copyright works by giving Authors certain exclusive rights
 –
monopoly rights
 –
totheir expression, and it allows them to restrict the speech of others where that speech conflictswith those exclusive rights
. I cannot reproduce today’s New York Times and distribute it to my
friends or put it on my Facebook page
 –
copyright restricts my freedom to speak. I cannot walk
into a bar at Washington Crossing and sing my version of Bob Dylan’s Like a Rolling Stone
 (though I have a terrific cover version of the song . . .)
 –
copyright restricts my freedom tospeak. I cannot take the final scene from the Harry Potter motion picture and insert it into thevideo
I’m making
 
on the occasion of my parents’ 50
th
anniversary
 –
copyright restricts myfreedom to speak.
I cannot translate Jonathan Franzen’s
Freedom
into Italian
 –
copyrightrestricts my freedom to speak. If I do any of these things (without the permission of the
 
Continuing Saga, p. 2
copyright holder), I’m subject to legal sanction
.
That’s how
copyright works
 –
by restrictingexpression.In fact, the Copyright Act specifically authorizes the seizure and destruction of books,DVDs, and the like
 –
one of the very few places in our law that does so. US marshals can (anddo) take books and throw them into the incinerator. Now, they only do so, mind you, on courtorder, after due pr
ocess; I’m not suggesting that
we live in some sort of barbaric, book-burningsociety. Not at all. But the fact remains that our copyright law permits the destruction, incertain circumstances, of books and newspapers and CDs and DVDs and . . . , and there is anobvious tension between such law and the freedom of speech protected by the 1
st
 Amendment.At the same time, of course, copyright law also encourages speech, and the productionand dissemination of expressive communications
 –
music and sculpture and news reporting andmovies and all the rest. It is and was intended to be, as the Supreme Court put it recently, oneof 
“
the engines of free expression . . . by establishing a marketable right to the use of one'sexpression, copyright supplies the economic incentive to create and disseminate ideas."Like I said
 –
 
it’s complicated.
I want to look tonight a little more closely at that tension between copyright and freeexpression, As I said, it is a tension inherent in the very notion of copyright law;
so it’s always
been there,
ever since we’ve had copyright law –
and because one of the very first bills enactedby the very first Congress
in 1791 was a Copyright Act, we’ve had copyright for a long time.It’s
only recently, however
 –
 
I’d say
the last 20 years or so
 –
that
we’ve begun to look
carefully at this tension, and to consider and to worry about its broader implications. This isdue largely to the rise of the Internet and related digital technologies, which has movedcopyright law from the outer periphery of the legal universe (and the outer periphery of ourculture) to the very center of both. We all now have the ability at our fingertips to makemillions of copies, at virtually no cost, of pretty much anything we can get onto our computers
 –
songs, movies, software, articles, photographs, etc.
 –
and to distribute those copies to
 
Continuing Saga, p. 3
millions of people around the globe
 –
again, at virtually no cost. Pretty much all of that(whether you know it or not) is copyright-protected information
; that’s just the way copyright
law works these days. Somebody owns the copyright in just about everything you have on yourcomputer, and just about everything you find on the Internet.The scope and shape of copyright law thus has a very significant and substantial impacton the shape of the Net
 –
on what you can find there, how you can get it, etc. And as theInternet has become a more important feature of our world, so too has copyright law become amore important feature of our legal world. For those of you in my generation, I would ventureto bet that copyright law never came up during your breakfast table conversations with yourfamily when you were growing up (unless your parents happened to be in the publishing or theentertainment business); but I bet your kids talk about copyright law
 –
about file-sharing, re-mixing videos, and all the rest
 –
maybe a lot.
Maybe they’ve even heard about the Pirate Party –
a political party in Sweden that has just gotten enough votes to be represented in theSwedish Parliament, and whose platform, basically, is: No More Copyright.In pre-Internet analog days, this tension and conflict between copyright and free speechwas an interesting but fairly insignificant question; today it has taken center stage.As it happens, no one had more interesting or influential things to say about
both
of these subjects
 –
copyright and the freedom of speech
 –
than Thomas Jefferson. [Having justwritten a book about Jefferson and spent 12 years or so
immersed in his work, I find that’s
often true;
there’s an astonishing range of things –
from meteorology to linguistics to gardeningto cryptology to paleontology and many others
 –
which turn out, when you start to look closelyat them, to have Jefferson
’s fingerprints all over them.
]On the one hand, Jefferson was our first great free expression and First Amendmentabsolutist. Freedom of expression was a central tenet
 –
really, the central tenet
 –
of 
Jefferson’s
creed.
 
To preserve the freedom of the human mind & freedom of expression and the press,
hewrote,
every spirit should be ready to devote itself to martyrdom; for as long as we may 
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