Standing on the Shoulders of Giants, 1845 Style

Just months before his death in September of 1845, Justice Joseph Story, riding circuit, so eloquently reminded all that everything builds on what came before:

In truth, in literature, in science and in art, there are, and can be, few, if any, things, which, in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.

No man creates a new language for himself, at least if he be a wise man, in writing a book. He contents himself with the use of language already known and used and understood by others. No man writes exclusively from his own thoughts, unaided and uninstructed by the thoughts of others. The thoughts of every man are, more or less, a combination of what other men have thought and expressed, although they may be modified, exalted, or improved by his own genius or reflection.

If no book could be the subject of copy-right which was not new and original in the elements of which it is composed, there could be no ground for any copy-right in modern times, and we should be obliged to ascend very high, even in antiquity, to find a work entitled to such eminence.

Virgil borrowed much from Homer; Bacon drew from earlier as well as contemporary minds; Coke exhausted all the known learning of his profession; and even Shakespeare and Milton, so justly and proudly our boast as the brightest originals would be found to have gathered much from the abundant stores of current knowledge and classical studies in their days.

What is La Place’s great work, but the combination of the processes and discoveries of the great mathematicians before his day, with his own extraordinary genius? What are all modern law books, but new combinations and arrangements of old materials, in which the skill and judgment of the author in the selection and exposition and accurate use of those materials, constitute the basis of his reputation, as well as of his copy-right? Blackstone’s Commentaries and Kent’s Commentaries are but splendid examples of the merit and value of such achievements.

Emerson v. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845) (paragraph breaks added).

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© 2014 Devlin Hartline. Licensed under the Law Theories Public License 1.0.

2 thoughts on “Standing on the Shoulders of Giants, 1845 Style

  1. Thanks for this Justice Story excerpt. I sent a link to your blog to my graduate filmmaking students (who’ve just completed a module on copyright law for 21st century storytellers) here in Taipei. It seems appropriate, as we‘ve talked about online “piracy” and fair use, to share this wisdom from another time and place.

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