Intellectual Property Law and History

Steven Wilf

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351562652
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

Intellectual property has become a dominant feature of our knowledge based economy in recent years, but how has property rights in intangible items developed? This book brings together for the first time exemplary scholarship with diverse approaches to the history of United States intellectual property protection, including trade secrets, trademark, copyright, and patent law. These articles, written by leading experts in the field and often challenging conventional narratives, underscore the importance of historical perspectives for understanding how an extensive, evolving framework for the regulation of knowledge emerged in the modern period. By tracing intellectual property from an historical perspective - not merely providing justifications in philosophy or economics in the abstract - this book draws upon the past to address contemporary debates over such varied topics as: access to knowledge; policing copyright infringement; whether employees should own the products of their minds; the role of national borders in an age of digital information; and the very future of intellectual property as stakeholders and consumers contest the extent of its legal protection.

[1]

Alexander Hamilton’s Alternative:
Technology Piracy and the Report
on Manufactures

Doron Ben-Atar

ON March 24, 1791, an announcement appeared in the Philadelphia Federal Gazette. One George Parkinson, of that city, advertised that he had recently obtained a United States patent for spinning flax, hemp, and combed wool by methods that represented “improvements upon the mill or machinery of Kendrew and Porthouse of the town of Darlington in Great Britain.” Why had Parkinson, an English weaver who later worked for the Society for Establishing Useful Manufactures (SEUM) in Paterson, New Jersey, been granted a patent monopoly even though his version of Richard Arkwright’s flax-spinning machine only marginally improved on the original? Parkinson’s announcement provided the answer. It was because this “machinery, with the original mechanism … [was] of the utmost value to the United States.”¹ By granting a patent to an “introducer” of a machine that was protected under Britain’s intellectual property laws the United States patent office rewarded technology piracy.²

Prohibitions on the emigration of artisans and the export of machinery from the British empire had been in effect throughout the eighteenth century. In the period following American Independence, growing anxiety in Britain over industrial piracy prompted stronger legislation and stricter enforcement. Under the new laws, illegal emigrant artisans forfeited their nationality and property and could be convicted of treason. Recruiting agents could be fined £500 and imprisoned for twelve months for each emigrant they enticed. A £200 fine, forfeiture of equipment, and twelve months’ imprisonment (or a £500 fine and forfeiture in the case of textile machinery) were laid down for the export or attempted export of industrial machinery. Ships’ captains were required to submit lists detailing passenger occupations to customs officials at British ports before departing, and in at least one instance the Royal Navy seized an illegal emigrant on an American ship, the Union, as it left Liverpool. British consular officials in America were instructed to report on British artisans and machinery in the United States.³

In 1791, Secretary of State Thomas Jefferson was in charge of American patents. In that official capacity, Jefferson approved Parkinson’s patent application and helped arrange the migration of Parkinson’s family to the United States.⁴ He thus sanctioned an overt violation of British restrictions on the diffusion of industrial technology. But Jefferson, staunch foe of Great Britain that he was, held conflicting views about technology piracy.⁵ He lent a hand to Parkinson’s family but not to Parkinson himself; as Julian P. Boyd writes, he “took no part in aiding the immigration of British artisans because it was forbidden by law.” A year earlier, Jefferson had been reluctant to support William Pollard’s application for a patent monopoly of another version of Arkwright’s machine.⁶

Treasury secretary Alexander Hamilton, on the other hand, wholeheartedly supported technology piracy. Parkinson was a partner of Tench Coxe, Hamilton’s trusted assistant. Coxe had contracted with Parkinson to build a mill based on the latter’s claim of detailed knowledge of the secret Arkwright machine. Hamilton thought the experiment merited a forty-eight-dollar Treasury subsidy to cover Parkinson’s living expenses in the spring of 1791.⁷ This episode was one of many instances in which Hamilton’s Treasury Department organized and supported raids on Britain’s industrial preeminence. Such projects strained Anglo-American relations because, as Anthony F. C. Wallace and David J. Jeremy explain, for “some of the highest officials of the American government to reward the violation of British law by issuing a patent for stolen invention—and thus to encourage similar adventures by other industrial spies—would hardly be considered a friendly act.”⁸

Hamilton’s efforts to undermine British technological supremacy seem out of character for a statesman whom historians often depict as something between a traitor and an obsessive Anglophile. Boyd long ago charged that Hamilton acted as a British operative in George Washington’s cabinet and that his deceptions and betrayals undermined the independent diplomacy Jefferson was trying to orchestrate.⁹ Albert Bowman similarly argues that in conceiving American interests “exclusively in terms of a close connection with England,” Hamilton’s diplomacy grossly misread “the American tradition … the American spirit and … the American promise.”¹⁰ Richard Buel, Jr., holds that Hamilton remained throughout the 1790s “committed to Anglo-American collaboration, even though worsening relations with France eventually made a formal alliance with Britain no longer necessary or even particularly advantageous.”¹¹ Bradford Perkins writes that Hamilton acted as a double agent in the Washington cabinet, “betraying information” to British representatives and subverting American interests by being “indiscreet, or disloyal.”¹² Critics of American diplomacy concur. William Appleman Williams sees Hamilton committed to “an American-British empire embracing most of the world.”¹³ Jerald A. Combs vilifies Hamilton as a ruthless imperialist, obsessed with heroism, glory, and power, who, to serve his personal ambition, mortgaged American independence to Britain’s political and economic interests.¹⁴ And Alexander DeConde has recently portrayed Hamilton as “an ardent Anglophile” intent on frustrating the anti-British initiatives of Jefferson.¹⁵

Hamilton has always had defenders. From nineteenth-century writers such as Richard Hildreth and John Bach McMaster through twentieth-century analysts such as Samuel Flagg Bemis and Forrest McDonald to Stanley Elkins and Eric McKitrick, scholars have rejected the portrayal of Hamilton as an English dupe and preferred instead a depiction of a highly gifted man who decided it was in the young nation’s best interest to throw in its lot with Great Britain. Yet even those who do not rush to condemn Hamilton’s policies explain those policies in terms of realistic acquiescence to English superiority. Elkins and McKitrick, for example, declare that an “Anglophile position on virtually everything” is at the core of Hamiltonianism.¹⁶

In the following pages I take a fresh look at Hamilton’s political economy from the perspective of international economic competition.¹⁷ I argue that British and American leaders believed technological competition played a crucial role in the international balance of power and that Hamilton’s initiatives in the battle over manufacturing expertise threatened the perceived source of Britain’s economic power—its industrial technology. I have stated elsewhere that Hamilton’s commercial program “amounted to … acquiescence in British restrictions on American commerce.”¹⁸ His industrialization plan, on the other hand, challenged Britain’s position as the premier industrial power in North America. He was willing, temporarily, to accept his country’s skewed balance of trade with England; at the same time, he challenged Britain’s industrial superiority by pirating British technology.¹⁹ Hamilton was on the mark when he reflected in 1800: “I may at some time have suggested a temporary connection [with Great Britain] for the purpose of co-operating against France … but … I well remember that the expediency of the measure was always problematical in my mind, and that I have occasionally discouraged it.”²⁰

Contemporaries correctly pointed out, as have historians since, that Hamilton greatly admired Britain’s economic and political power and wanted the United States to emulate it.²¹ Yet constructing a British modeled political economy in America did not mean turning the United States into a British satellite. On the contrary. British political economy and economic diplomacy were founded on the assumption of a zero-sum game in which a gain for Britain meant a loss to other countries and vice versa. Transplanting this vision across the Atlantic did not mean that the United States would become a weakened British crony but a strong egocentric competing power.²²

Hamilton’s commercial and industrial programs, in spite of their opposing international orientations, complemented one another. Like British neomercantilists of the late eighteenth century, who “combined economic liberalism with economic nationalism,” Hamilton, “the preeminent neomercantilist in the United States,” favored liberalization of trade, development of the domestic economy, and government sponsorship of home manufactures.²³ He believed that economic independence was inseparable from political independence and was dismayed by the American addiction to manufactured British imports. After securing the financial stability of the nation, Hamilton outlined his vision of government aid to industry. Close examination of Hamilton’s supposed anglophilia in relation to his practice of technology piracy reveals a sophisticated and subtle plan of government sponsorship of manufactures that would challenge British industrial preeminence without risking United States involvement in a trade war it could not win.

The Report on Manufactures (ROM), unlike Hamilton’s other two financial papers, did not address a specific or immediate fiscal problem. It dared to project the future, expressing the Hamiltonian vision at its fullest. Hamilton put forward a powerful theoretical argument in favor of the federal government’s active promotion of manufacturing. He took on the antistatist political economists of the time, particularly Adam Smith and the Physiocrats, who had argued that “manufactures without the aid of government will grow up as soon and as fast, as the natural state of things and the interest of the community may require.”²⁴ Submitted on December 5, 1791, the report failed to inspire Congressional legislation because it contained, as the editors of Hamilton’s papers note, “few, if any, specific proposals.”²⁵ The report therefore has been evaluated primarily as a theoretical presentation.²⁶

On January 15, 1790, the House of Representatives had asked the secretary of the Treasury to prepare a report on the state of American manufactures and devise a plan for their encouragement. Hamilton turned to manufacturing societies that had appeared in many cities in the 1780s for information. The responses had much in common. They described growing industrial activities and at the same time elaborated on the obstacles t...

Table of contents

• Cover Page
• Halftitle
• Series Title
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• Series Preface
• Introduction
• 1 Doron Ben-Atar (1995), ‘Alexander Hamilton’s Alternative: Technology Piracy and the Report on Manufactures’, William and Mary Quarterly, 52, pp. 389–414.
• 2 Jane C. Ginsburg (1990), ‘A Tale of Two Copyrights: Literary Property in Revolutionary France and America’, Tulane Law Review, 64, pp. 991–1023.
• 3 Peter Jaszi (1991), ‘Toward a Theory of Copyright: The Metamorphoses of “Authorship”‘, Duke Law Journal, 1991, pp. 455–502.
• 4 Catherine L. Fisk (1998), ‘Removing the “Fuel of Interest” from the “Fire of Genius”: Law and the Employee-Inventor, 1830–1930’, University of Chicago Law Review, 65, pp. 1127–98.
• 5 Claudia Stokes (2005), ‘Copyrighting American History: International Copyright and the Periodization of the Nineteenth Century’, American Literature, 77, pp. 291–317.
• 6 Steven Lubar (1991), ‘The Transformation of Antebellum Patent Law’, Technology and Culture, 32, pp. 932–59.
• 7 B. Zorina Khan (1995), ‘Property Rights and Patent Litigation in Early Nineteenth-Century America’, Journal of Economic History, 55, pp. 58–97.
• 8 Christopher Sprigman (2004), ‘Reform(aliz)ing Copyright’, Stanford Law Review, 57, pp. 485–568.
• 9 Steven Wilf (2008), ‘The Making of the Post-War Paradigm in American Intellectual Property Law’, Columbia Journal of Law and the Arts, 31, pp. 139–207.
• 10 Robert P. Merges (2000), ‘One Hundred Years of Solicitude: Intellectual Property Law, 1900–2000’, California Law Review, 88, pp. 2187–240.
• Name Index