Piracy_ The Intellectual Property Wars from Gutenberg to Gates - Adrian Johns [77]
The opposing position originated with the controversial theologian and literary executor of Pope, William Warburton. In 1747 Warburton published the first defense of authorial property to insist at length on a real distinction between books and inventions. It did so in a simple argument couched in terms of scholastic notions of form, matter, and final causes. Warburton maintained that a book contained what he called "doctrine," in which literary property inhered. By contrast, there was no doctrine in what he called a "utensil," bywhich he seems to have meant an extremely basic machine like a fork. The only property such a device could sustain was therefore in the material object itself In other words, to perceive the distinction one needed to consider "the complete Idea of a Book" and recognize it as a"Work ofthe Mind. "48 Warburton's discussion of books and machines -he clearly had rather high-cultural books in mind, as well as rather banal machines-thus laid out two extremes, characterized by the absolute existence and nonexistence of "doctrine," and hence of natural property. He did, however, acknowledge a complex middle case. This was occupied bywhat he called "mechanic Engines. " Mechanic engines were machines that were partlyworks of the mind and partly of the hand. Their common characteristic was that they manifested nature's "Powers," which were "regulated by the right Application of Geometric Science."
There was a certain precedent for this idea in the place traditionally accorded in the universities to the mathematical sciences.49 But Warburton seems to have been thinking specifically of the demonstration devices that commercial lecturers in Hanoverian England used to convey mechanical philosophy to paying audiences. The maker had no natural right of property even in such a device, he noted, although "the Operation of the Mind" was clearly "intimately concerned" in its design and manufacture. But a mechanic engine did warrant some artificial exclusivity. And that, he said, was exactly why states had stepped in to offer limited-term privileges. InWarburton's view, patents existed because scientific machines occupied an intermediate position between hand works (no property) and mind works (natural property). Their existence paradoxically confirmed the validity of perpetual rights in the latter.50
By contemporary standards Warburton's analysis was both simplistic and conceptually dated.Thurlow dismissed it simply as "miserable." Even a simple machine, he pointed out, might demand from its author as much "labour of Head" as an orrery did from its more expert maker, so that "this Ground of Property depends entirely upon the Difference of Heads."si But upholders of the right of authorship nevertheless seized on the idea, and from this point on routinely invoked a radical distinction between machines and books. Willes andAston, for example, insisted on its' More extensively, the anonymous author ofA Vindication of the Exclusive Right of Authors to their own Works (1762) endorsed a similar commitment. For this author a mechanical invention was properly an "object of trade," and as such should be left unrestricted on free trade grounds. In a machine the working of the mechanism was the only aim, with no further