Abstract
This article draws on theoretical resources from economic sociology and sociology of law to intervene in economic debates about the relationship between intellectual property and industrialization. Utilizing historical evidence from the earliest period of American intellectual property law and from a formative company in the New England textile industry, I propose a social process of influence that connects intellectual property law to industrialization. I argue that, consistent with the findings of New Economic Sociology, social relationship structures and social capital are the proximate influential force in industrialization. However, I also argue that transformative changes in those social relationship structures are rooted in the emergence of a particular type of political culture: what I call here, borrowing from Hannah Arendt and Frank Dobbin, a “Natal-Industrial Culture.” A Natal-Industrial Culture, as I propose it here, is a political culture in which collective hopes for the future are placed in new technologies and new cultural products, as means for achieving economic growth. Intellectual property law contributed to the emergence of this new type of political culture by holding out the promise of property, as a reward for the provision of new technologies or new cultural products. Because of the way that hope works on motivation—through cognitive pre-rehearsals of future attainment, which involve semantically-meaningful propositions and contribute to positive emotional experience—the promise of property provided a powerful stimulant to social capital formation. Working through the semantic resonances of property, intellectual property law contributed to a political culture in which invention and creativity were expected to secure a future of growth within the political community, both for particular members and for the political community, as a whole. By fostering a Natal-Industrial Culture, intellectual property law contributed to systematic invention and social capital-formation, leading, in turn, to the transformative changes in working and material provisioning that constitute industrialization.
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Notes
The term “reciprocity” is used more often than loyalty. However, researchers are typically interested in an actor’s subjective expectation of reciprocity, i.e., in her motivation for action. In this case, her belief in the loyalty of another person seems to be the more fundamental attitude, rather than her belief in the other’s reciprocity. We want our relationships to be fair, but even if they are not always strictly fair, we are likely to trust them when we believe the other person is loyal.
Three factors can be analytically distinguished in considering how social relationship structures generate these economic benefits or costs: (1) the attributes of the overall relationship structure, (2) the position an individual or firm occupies within the structure, and (3) the quality of the ties comprising the structure (see Uzzi 1996, p. 675).
Hannah Arendt was notoriously skeptical of sociology and the social sciences (see Walsh 2015; Baehr 2010, 2005, 2002). In her view, the rise of the social sciences is tied to a historical development toward modernity that elevated “society,” and correspondingly devalued “politics,” in dangerous and morally-objectionable ways (Arendt 1998). She was deeply disturbed by tendencies toward social engineering in sociology and the social sciences, which were characteristic of a type of social action in which society is something that we make and manipulate. Nevertheless, her vision is centrally focused on the life of human beings in interaction with one another, and she was certainly a social theorist. She was, moreover, a deeply original social theorist who reflected on a number of themes centrally relevant to this article: law, political community, culture, meaning, economic growth, technology, property, and hope.
Pairing Kant and Augustine in a sociological theory of hope might seem to be a rather ill-fated proposition. Kant, after all, famously excluded emotions and affectivity from moral motivation, whereas Augustine placed love, joy, grief, and fear at the very heart of his ethical theories. Without denying the obvious differences between Kantian and Augustinian theories, it is nevertheless true that both theorists emphasized the role of judgment in moral motivation. And it is precisely in the area of moral judgment that contemporary social psychologists and moral philosophers are pointing to the inseparability of reason and emotion (see Nussbaum 2013, 2001). When it comes to processes of moral judgment, social psychologists tell us that “emotion and cognition are best viewed as a set of processes ... so deeply intertwined that [they] cannot be captured within a simple dichotomy” (Helion and Pizarro 2015).
On February 23, 1815, a US patent “in looms” was issued to “F.C. Lovell and P.T. Jackson” of Boston (Commissioner of Patents 1872, p. 150). The Directory of American Tool and Machinery Patents (www.datamp.org) identifies this patent as patent number X2,271, and identifies its issuance date as February 21, 1815, rather than February 23. In 1836, a fire destroyed US Patent Office records, so patents issued before this time have not been completely recovered. The Patent Office only began assigning unique patent numbers in 1836.
Between 1790 and 1802, at least 5 patents were issued for distillery-related inventions. The fourth US patent was issued to Aaron Putnam for an “improvement in distilling” (Jan. 29, 1791). Thereafter, patents were issued to Joseph Simpson for an improvement in “distilling spirituous liquors” (Mar. 4, 1794); Alexander Anderson for his steam still (Sept. 2, 1794); Fitch Hall for a “combinn. of astringt. woods and vegetables, in distilling, &c” (Apr. 17, 1797); and Benjamin Henfrey for “increasing the surface of evaporation for the purpose of distilling” (Mar. 2, 1801) (Commissioner of Patents 1872, pp. 4, 8–9, 14, 24).
Between 1816 and 1821, 9 textile machine-related patents were issued to Paul Moody. This may represent only a portion of the total machine-related patents held by the Boston Manufacturing Company, since it is possible that patents were issued to other employees in the machine shop.
Francis Cabot Lowell had hoped to hire Perkins as his chief engineer, but his inventive needs were well-supplied by Paul Moody, Perkins’s former employee. Between 1795 and 1813, at least 14 patents were issued to Jacob Perkins, including 3 patents relating to pumps and mills. A patent for a water mill was dated June 26, 1913, and is numbered 1955X in the DATAMP database (see also Commissioner of Patents 1872, pp. 124, 127).
“Ginning” is the process whereby the husk and seeds are removed from the cotton plant; it was usually carried out at or near the plantation (see Marsden 1888, p. 74).
As remembered by Harriet Robinson (1898, pp. 68–69): “A woman was not supposed to be capable of spending her own or of using other people people’s money.... She was a ward, an appendage, a relict. Thus it happened, that if a woman did not choose to marry, or, when left a widow, to re-marry, she had no choice but to enter one of the few employments open to her, or to become a burden on the charity of some relative. In almost every New England home could be found one or more of these women, sometimes welcome, more often unwelcome, and leading joyless, and in many instances unsatisfactory, lives. The cotton factory was a great opening to these lonely and dependent women. From a condition approaching pauperism they were at once placed above want; they could earn money, and spend it as they pleased; and could gratify their tastes and desires without restraint, and without rendering an account to anybody. At last they had found a place in the universe; they were no longer obliged to finish out their faded lives mere burdens to male relatives.”
Between 1823 and 1825, a series of agreements between the Boston Manufacturing Company and the Merrimack Manufacturing Company at Lowell resulted in the transfer of all patents rights, and of the employees of the Waltham Machine Shop, to the Merrimack Company. Subsequently, the patents and machine shop operations were transferred to another Lowell company owned by the Merrimack shareholders: the Proprietors of the Locks and Canals on the Merrimack River (see Gibb 1950, pp. 55–70).
Speaking of New England machine shops generally, and of the Lowell machine shops in particular, Clark (1916, pp. 519–520) writes that “Inventors and owners of patents exercised a large control over the development of this industry.”
“The Waltham licensing agreements constitute an early example of a business technique which did much to hasten the industrial development of the country. The practice of selling manufacturing rights enabled small machine shops to get their machines produced in greater volume and over a wider area than would have been possible had they utilized only their own manufacturing facilities.... There is no evidence to show that the licensing of inventions to other manufacturers in the cotton textile industry was practiced on any significant scale before the time of the Boston Manufacturing Company. Widespread knowledge and use of Samuel Slater’s machinery in the 1790s came about as a result of actual theft of machine plans by workmen. The fact that two decades later Waltham machinery was made available to the industry largely through legitimate channels of sale and patent leasing indicates, not that Americans were becoming more scrupulous, but that patent rights and laws had now come to carry weight” (Gibb 1950, p. 44).
Regarding Joseph Story’s influence on American patent law, patent historian Frank Prager (1961, p. 264) wrote: “Even if more recent judges and legislators have modified the ideas of Story, such ideas are nevertheless present in the law. Some of them have in fact proven stronger than the written word of the statute.”
See Boston Manufacturing Company v. Fiske, 2 Mason 119 (C.C.D. Mass. 1820); Moody v. Fiske, 2 Mason 112 (C.C.D. Mass. 1820). The Moody v. Fiske case involved a nominal defeat, since the patent as specified was ruled to lack novelty and thus to be void. However, the ruling permitted Moody to withdraw his patent and obtain replacements that would address the specification problems. Moody did so, and obtained a verdict against the defendants the following year (see Khan 2005, p. 94; Commissioner of Patents 1872, at pp. 218, 223–224).
Taken together, the Millar and Donaldson decisions constituted the definitive legal determination that copyrights are a statutorily-established and temporally-limited type of legal property, recognized as such by English law (see Ford 2015; Stern 2012; Deazley 2004; cf. Gómez-Arostegui 2014). In the course of the legal debates, analogies were constantly drawn between patents and copyrights, so the implications of Millar and Donaldson extended to patents, as well, although their status as legal property would not be explicitly acknowledged for some time to come.
There are strong tones of irony and jest in this letter, which was written by an American citizen to a British friend shortly after the Revolution had been won.
According to the editor John Bigelow, this description appeared in a part of the manuscript written by Franklin around 1789, near the end of his life (Franklin 1868, p. 15).
This three-man committee consisted of Ralph Izard (South Carolina), James Madison (Virginia), and Hugh Williamson (North Carolina) (Journals of the American Congress, Vol. 4, 1823, p. 219; Bugbee 1967, pp. 113, 189).
The dates of the statutes are as follows: Connecticut (January 1783), Massachusetts (March 17, 1783), Maryland (April 1783), New Jersey (May 27, 1783), New Hampshire (November 7, 1783), Rhode Island (December 1783), Pennsylvania (March 15, 1784), South Carolina (March 26, 1784), Virginia (October 17, 1785), North Carolina (November 19, 1785), Georgia (February 3, 1786), New York (April 29, 1786) (Crawford 1975, p. 13; Library of Congress 1906).
Ledyard’s petition made no reference to a “natural right” of authors, emphasizing instead his need for legislative “patronage,” and the usefulness of his account to America and her “northern States by opening a most valuable trade across the north pacific Ocean to China & the east Indies” (Ledyard 1783, p. 3). Rather than simply granting the privilege, however, the Connecticut Assembly named a committee under Samuel Huntington to examine the petition and make a recommendation (Ledyard 1783, p. 3).
The very same day that Ledyard sent his request (January 6, 1783), 24-year-old Noah Webster sent a package of materials from Goshen, New York to John Canfield, a Connecticut attorney and assemblyman (Unger 1998, pp. 58–59; Webster 1953, pp. 3–4). This package of materials included a preliminary manuscript of Webster’s American Spelling Book, a primary-school textbook intended to provide basic instruction in reading, writing, and spelling to American children, and to replace the then-dominant British “spellers” that Webster believed were inadequate (see Unger 1998, pp. 33–58). Appended to the manuscript were letters of recommendation, including a brief letter from law instructor Tapping Reeve, whom Webster may have met while studying law in Litchfield, Connecticut—possibly through his Yale friend Oliver Wolcott, Jr., who studied law under Reeve (see Unger 1998, pp. 34–40; Webster 1793, p. vii). Also included was a letter to Canfield, which urged the assemblyman to “procure my request at the Assembly” (Webster 1953, p. 3). This “request” was for a special copyright enactment, which Webster had sought from the Connecticut Assembly the previous fall.
In this 1782 letter, Webster had described the Speller, particularly emphasizing its benefits to the “interest of literature and the honor and dignity of the American empire” (Webster 1953, p. 2). He had also emphasized his desire to “prevent spurious editions and … have the book under his own correction, and especially to secure to him the pecuniary advantages of his own productions to which he conceives himself solely entitled” (Webster 1953, p. 2). In his January 6 letter to John Canfield, Webster pressed the urgency of his request, asserting that financial constraints would not permit him to continue work on the Speller unless that work received the “encouragement” and “security” of copyright protection (Webster 1953, p. 3).
Noah Webster’s “lobbying” efforts in the fall of 1782 and thereafter to secure copyright protection for his Speller have received considerable attention from legal and cultural historians (see Pelanda 2011; Bracha 2008; Bugbee 1967). The general consensus is that Webster’s contributions have been overemphasized; while his labors were significant in drawing attention to the national benefits of copyright protection, it goes too far to call him the “prime mover” of copyright, as his granddaughter did (see Ford 1912, p. 53; Webster 1843; compare Pelanda 2011; Bracha 2008; Bugbee 1967).
Smith (who would serve as President of Princeton College from 1795 to 1812) began a series of lectures on moral and political philosophy in 1795, and published them in 1812. In his jurisprudence lectures pertaining to the acquisition of property by “occupation” and labor, Smith wrote the following:
Labor forms another, and still juster title to property. By it is intended any exertion of our talents, or any effort of industry, corporeal or mental, by which a thing is discovered that was not known before—fabricated that did not exist before—or receives, from some change in its form, an augmented value. The title acquired by this means is a necessary result of the natural right which every man possesses to the use of his own faculties, and the enjoyment of their fruits. The productions of a man’s ingenuity and skill are his property, which he may employ or dispose of for his own benefit (pp. 196–197)
The influence of John Locke is evident in these lectures, and they clearly draw on Roman law and natural law traditions. For example, in the sentences following the quoted language, Smith drew on the category and principles of “accession” to address to the use of another’s materials in creative labor (p. 197).
“An application on this subject will be made at the next sessions of our legislature, and I have that opinion of the public spirit and natural equity of my countrymen, that I can hardly doubt its success.” (Connecticut Courant, Jan. 7, 1783). The January Session of the Assembly began on January 8 and went through February 8 (see The Public Records of the State of Connecticut for the Years 1783 and 1784 (Volume 5) (Leonard Labree ed. 1943).
Trumbull knew Barlow from his days as a Tutor at Yale, and probably met Webster after his return from Boston to New Haven in 1774 (see Cowie 1936, p. 208; Trumbull 1820, p. 15). As Tutor of Yale College during a very unsettled period, both in the history of the nation and in the history of that educational institution, John Trumbull had worked with Timothy Dwight to raise the pedagogical status of fine literature and literary work (see Trumbull 1820, pp. 12–15; see also Unger 1998, pp. 12–20). These efforts were advanced under the Presidency of Ezra Stiles, which commenced in 1777/1778 (see Unger 1998, pp. 28–32). Joel Barlow and Noah Webster were, in different ways, products of Yale’s new literary emphasis, determined to pursue literary vocations upon their graduation in 1778. While establishing his legal practice, Trumbull also established a relationship with the Hartford printer-publishing firm of Hudson and Goodwin, which printed his poem M’Fingal as well as the Connecticut Courant. In 1783, Hudson and Goodwin, with financial support from Trumbull, would publish Noah Webster’s Speller (see Unger 1998; Grasso 1995, p. 22).
“The whole [of M’Fingal] was finished, and the first edition published at Hartford, before the close of the year 1782. As no author, at that period, was entitled by law to the copyright of his productions, the work soon became the prey of every bookseller and printer, who chose to appropriate it to his own benefit. Among more than thirty different impressions, one only, at any subsequent time, was published with the permission, or even the knowledge of the writer; and the poem remained the property of newsmongers, hawkers, pedlars and petty chapmen” (Trumbull 1820, pp. 18–19).
(1) “The Honorable David Ramsey Esquire Registers a Work Called the History of the Revolution in South Carolina from a British Province to an Independent state between the years 1774 and 1783” (April 20, 1785); (2) Henry Osborne Registers an original Work Entitled ‘An English Grammar Adapted to the Capacities of Children’” (April 21, 1785); (3) “Noah Webster Registers an Original Work Entitled ‘An Institute of the English Language in three parts’” (June 30, 1785); (4) “Robert Squibb Registers a Work called ‘The Gardener’s Calendar for South Carolina, Georgia and North Carolina, Containing an account of Work necessary to be done….’” (February 5, 1787); (5) “Nicolas Pike of Newberry Port in the State of Massachusetts … Registers a Work intitled ‘A New and Complete System of arithmetic Composed for the Use of the Citizens of the United States” (February 14, 1787); (6) “The Honorable John Faucheraud Grimke Esqr Registers an original Work entitled ‘The South Carolina Justice of the Peace ...’” (October 11, 1788).
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Acknowledgements
I would like to thank two Theory and Society reviewers for very helpful and thoughtful comments, which contributed to substantive and (I hope) improving revisions. I am also very grateful to the Editors of Theory and Society, for creating a space in which an article such as this one can be published. For helpful conversations in which the ideas presented in this article were developed and reworked, I wish to especially thank Mark Bartholomew, Guyora Binder, Michael Halberstam, Errol Meidinger, and Richard Swedberg.
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Ford, L.R. Intellectual property and industrialization: legalizing hope in economic growth. Theor Soc 46, 57–93 (2017). https://doi.org/10.1007/s11186-017-9285-3
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DOI: https://doi.org/10.1007/s11186-017-9285-3