Madison, IP and the Creative Class

In the emerging conflict between creators and content repackagers and conduits (e.g., social media and Google), it is good to remember what James Madison said about IP:

“With regard to Monopolies they are justly classed among the greatest nusances [sic] in Government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced? . . . Is there not infinitely less danger of this abuse on our Governments than in most others? Monopolies are sacrifices of the many to the few. Where the power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions. Where the power, as with us, is in the many not the few, the danger can not be very great that the few will thus be favored. It is much more to be dreaded that the few will be unnecessarily sacrificed to the many.

[Letter from Madison to Thomas Jefferson, October 17, 1788 (emphasis added)]

Madison was one of the drafters of the “IP Clause” in the US Constitution. He seems to have recognized that the many would want free access to the valuable creations of the few, and that thus this risk was far greater than the risk of the smaller creative class dominating the many through patent or copyright grants.

Today we have big social media and content repackaging sites treating creative works as just so much commodified, fungible stuff to feed the voracious appetite of the many. Meanwhile, the smaller creative class is trying to maintain some level of premium pricing for what are distinct individual creations. The creative class is losing the war, just as Madison feared.

About Sean O'Connor

Sean O’Connor is the Boeing International Professor at the University of Washington School of Law (Seattle). He is also Chair of the Center for Advanced Study and Research on Innovation Policy and Faculty Director of the Cannabis Law &B Policy Project. With a diverse background in music, technology, philosophy, history, business, and law, he specializes in legal issues and strategies for entrepreneurship and the commercialization of innovation in biotechnology, information technology, and new media/digital arts.
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