U.S. Intellectual History Blog

“Valeat Quantum Valere Potest”: Pragmatism and the Class Politics of Oliver Wendell Holmes, Jr.’s Copyright Jurisprudence, Continued

HolmesThe following is Part 3 of Kurt Newman’s guest essay.

Part 1: “The taste of any public is not to be treated with contempt”: Oliver Wendell Holmes, Jr. and the Class Politics of Progressive Era Copyright Jurisprudence

Part 2: James Livingston’s Pragmatism

Having worked through James Livingston’s powerful revision of the history of pragmatist thought, we are now in a position to return to the question of the class politics of Oliver Wendell Holmes, Jr.’s copyright jurisprudence.

We concluded Part 2 with the proposition that three dimensions of nineteenth-century US pragmatism are particularly relevant to our project: the embrace of living experimentally, “on credit,” with all truths treated as provisional and subject to change, which we will call here “fallibilism”; the turn to a theory of meaning based on pure difference, which we will call pragmatism’s “semiotic” impulse, and the new cinematic attentional economy based on flux and fixation, and its implications for the understanding of human perception, which we will call, after Bergson, a philosophical concern with “duration.”

Fallibilism, semiotics, duration: these are the themes we will be tracking, first by reviewing their origins in the work of pioneering pragmatist Charles S. Peirce [1] (we focus on Peirce both because Peirce was first and because his concerns dovetail elegantly with the particulars of legal discourse at issue here; the example of Peirce functions as a synecdoche for classical pragmatism, in toto), and then returning to Holmes’s Bleistein decision, discussed in Part 1 (with some supplementary analysis of a related case, White-Smith v. Apollo). [2]

Peirce Strings

The turn to fallibilism was the inaugural gesture of pragmatist aesthetics. Its arrival marked the embrace of an experimental, provisional, and open perspective on truth that allowed for the development of a semiotic theory of meaning and new explorations of the nature of attention and perception.

Additionally, Peirce’s epistemological revolution was radically social in orientation and implicitly egalitarian in practice, redefining reality as “what a community of inquirers would discover, given adequate resources and time,” and protesting his fellow philosophers’ “absurd disregard for others’ opinions.”

In his construction of a pragmatist epistemology, Peirce casts doubt upon the reliability of the bourgeois subject’s cogito as the command center of perception, because such an individualizing model of thought illegitimately wishes away the social character of knowledge. “What others believe cannot but influence what we ourselves believe, not least of all because their contrary beliefs have the capacity to generate genuine doubt,” Peirce writes; such is “the potential strength of the social impulse in human beings.” Humans thus need a “communal way of fixing beliefs.”

While deference to an arbitrary authority always lurks as a possible solution to the problem of how to fix beliefs and assure consistency and agreement, it can never work: “for in the most priest-ridden or police-controlled states, there will always be some persons who, prompted (again) by the social impulse instinctive to human beings, cannot help supposing that the differing beliefs of those from different cultures or ages may, in principle, be true.” Peirce therefore insists: “nothing less than an infinite, evolving community can offer the epistemic authority needed to fix beliefs, at least for social beings such as humans.” Peirce clears the path, then, for a social leveling of philosophy, and a renunciation of Plato’s insistence that there is a structural block inherent in human societies that prevents all but the privileged few from apprehending the truth.

Here, we see an initial resonance with Justice Holmes as he would appear in Disneyland’s Hall of Presidents, the gaunt animatronic robot repeating “The life of law has not been logic; it has been experience” on an endless loop. But “experience,” for Peirce, is more than a kind of all-American faith in prudence and know-how; it is not “experience” as it might be used in an advertisement for a job opening. Instead, “experience” leads Peirce to a radically indeterminate vision of thought, and especially to metaphors of malleability and alterability. For Peirce, the mind is “infinitely plastic.” The texture of everyday life is characterized by processes of bending and straightening, hardening and softening, flux and fixation. A little later in the nineteenth century, William James will pick up on Peirce’s fallibilism, painting truth as “the opinion which is fated to be ultimately agreed to by all who investigate.” Or, as he put it in Pragmatism: ‘the absolutely true, meaning what no farther experience will ever alter, is that ideal vanishing-point towards which we imagine that all our temporary truths will some day converge.”

Peirce’s fallibilism resonates with Holmes’s copyright jurisprudence in several important respects. In Bleistein, Holmes brings an experimental, provisional approach to truth to the construction of the Copyright Act’s language. To properly come to grips with Holmes’s openness to experimentation and provisonality, it is useful to bring in another, perhaps unexpected, perhaps unwelcome conceptual persona: Immanuel Kant. It is Kant, or at very least Kant the author of The Critique of Judgment who lurks in the background of debates over copyright in the Gilded Age and Progressive Era. What Holmes challenges, in his openness to the copyrightability of a circus poster, is the self-sufficiency of a Kantian vision of the aesthetic as exclusively the domain of the disinterested contemplation, by a well-bred subject, of a “work of art”: that is, a functionally “useless” object, brought into the world by an “artist,” and not by an “artisan” or “worker,” and outside of the market’s utilitarian “cash nexus.”

Holmes pragmatically rejects this Kantian vision of aesthetic value. Pragmatically, because he recognizes the “greatness” of canonical art throughout his decision. Holmes is not skeptical about the merits of masterpieces; he simply accepts that other varieties of merit, perhaps new varieties ushered in by changing historical conditions, might happily supplement the existing standard. Holmes thus insists that the Copyright Act “does not mean that ordinary posters are not good enough to be considered within its scope.” Holmes insists that “works are not the less connected with the fine arts because their pictorial quality attracts the crowd and therefore gives them a real use—if use means to increase trade and to help make money” (Bleistein, HN3). Like Peirce, Holmes is open to a social determination of meaning of value, and like James, Holmes does not regard the logic of the market as inherently evil.

Holmes’s “aesthetic relativism,” then, evident in his willingness to move beyond Kantian certitudes, speaks to the solidaristic dimensions of pragmatist thought. In this respect, we may discern parallels between Holmes, Peirce’s understanding of thinking as an active, social process, and John Bates Clark’s notion of “mental labor” (discussed in Part 2 of this essay). The key to Livingston’s reading of American marginalist conceptions of “mental labor” is that, in contrast to the Randian “makers and takers” discourse of today, the push for “mental labor” in the late nineteenth century did not derive from elite desires to distinguish the heroic and productive upper class from the infantile troglodytism of the working masses. Rather, thinkers like Clark sought to establish a continuum of productive (and reproductive) labor that might provide a source of organic, cross-class solidarity. Clark, in other words, was attempting to legitimate the value added by management on labor’s own ethical terms. The ideal, for Clark, was “everyone a worker.” Holmes’s innovation was in many a ways a parallel gesture: “everyone an author.”

To get to “everyone an author,” Holmes drew upon another dimension of Peirce’s pragmatics: the latter’s stress upon the centrality of the “symbolization” process: “the imaginary operations by which novel symbols are generated.” Our imagination is irrepressibly “symbolific.” If  “symbolization” could be understood as a species of work, then nothing remained to distinguish modern audiences and consumers from authors and painters: all could be seen as involved in the same conceptual activity of making and interpreting signs and symbols.

In the Bleistein case, a pragmatist “fallibilism” was also inherent in the very question of how new technologies ought to be processed by copyright law. The “authors” and “writings” addressed by the 1790 Copyright Act had been treated experimentally throughout the nineteenth century: as Bleistein’s lawyers reminded the Court, designers, engravers, lithographers, and photographers had all been assimilated under copyright’s umbrella.

Holmes agreed that the circus posters at the center of Bleistein merited copyright protection. By ratifying the Copyright Act of 1790, Congress meant to promote the “progress” of the “useful arts”: but what, Holmes asked, did that mean? “Useful” could not possibly mean the satisfaction of immediate bodily means. In fact, such a utilitarian reading of the Copyright Act would produce exactly the opposite meaning than the one likely intended by the framers. Against the notion that the circus posters merely captured, in the manner of a snapshot, a snippet of “real life”—and thus failed to rise to the level of “art” that the case of Burrow-Giles Lithographic Co. v. Sarony (1884) had established for photography, with the requirement that some trace of authorial labor in the form of framing, dressing, posing, etc. be evident in the final product––Holmes questioned whether such a charge could not also be leveled against the masters whose work served as the benchmark against which new forms of expression were measured. Would not Donaldson’s argument, carried through, imply that a “portrait by Velasquez or Whistler was common property because others might try their hand on the same face”? The old fashioned idea of copy and original no longer obtained. Copyright only spoke to the regulation of reproductions of reproductions: “Others are free to copy the original.  They are not free to copy the copy.”

Importantly, as Holmes worked out his argument for the unproblematic inclusion of circus posters within the ambit of copyright law he revealed the centrality of class. The antitheses of “illustrations or works connected with the fine arts” covered by copyright law were not “works of little merit or humble degree, or illustrations addressed to the less educated classes” (emphasis added). Rather, the only varieties of aesthetic expression categorically ineligible for copyright protection were “prints or labels designed to be used for any other articles of manufacture.”

Here, Holmes established a link between the class character of popular or commercial forms of expression and the fallibilist vision of truth as the ever-changing product of collective experience. “Certainly works are not the less connected with the fine arts,” Holmes noted, “because their pictorial quality attracts the crowd and therefore gives them a real use—if use means to increase trade and help to make money.” Goodbye, Kantian disinterest. “A picture is none the less a picture and none the less a subject of copyright that it is used for an advertisement.”

Fallibilism and a sense of truth as collectively determined and continually revised guide also Holmes’s skepticism in regard to the evaluative capacities of judges. “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations,” Holmes wrote, “outside of the narrowest and most obvious limits.”  At the one extreme, he speculated, some “works of genius would be sure to miss appreciation,” as their “very novelty would make them repulsive until the public had learned the new language in which their author spoke.”  Would the works of Goya or Manet have been judged worthy of protection when seen for the first time?

At the other extreme, “copyright would be denied to pictures which appealed to a public less educated than the judge.” The collective judgment of worth—determinations of marginal utility, as it were––rendered commercial artworks valuable, and “the taste of any public is not to be treated with contempt.” Holmes follows this evaluation with a Peircean note: “It is an ultimate fact for the moment, whatever may be our hopes for a change.” Echoing James on the epistemological centrality of desire, Holmes writes: “That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them.”

Holmes’s pragmatist “fallibilism” was also evident in his refusal to honor Victorian morality as a guide to artistic merit. Donaldson’s lawyer Mr. Edmund W. Kittredge attempted to argue that Bleistein’s case was moot because copyright law “does not protect what is immoral in its tendency.” Because the circus posters represented “unchaste acts of scenes calculated to excite lustful or sensual desires in those whose minds are open to such influences, and to attract them to witness the performance of such scenes.”  The “young and immature and those who are sensually inclined” might be influenced by such representations; the Court, in deciding Bleistein, should consider whether a tendency to excited the “wrong” kinds of aesthetic responses should not exclude objects like circus posters from copyright’s protections.

Semiotic Relationships

The second area of pragmatist conceptual innovation that concerns us here is Peirce’s development of a semiotic theory of meaning. The “woof and warp of all thought and all research is symbols,” Peirce famously wrote in “The Ethics of Terminology,” and “the life of thought and science is the life inherent in symbols.” Vincent Colapietro notes that Peirce’s investigation of signs built on three convictions. First, thinking is always dialogic, if only, at a minimum, between anterior and posterior moments of an interior monologue. Second, thought cannot be severed from its modes of expression: Peirce rejected the supposition that thought is something apart from its possibility of expression or articulation. Signs are all we can know of thoughts. Thus, every philosopher is a semiotician. Third, Peirce was convinced that every symbol is a “living thing,” in a strictly literal sense. Peirce was aware that such a claim is likely to strike many people as “stark madness, or mysticism.” But for Peirce, thinking about the mental work of symbolization led inexorably to a vitalist take on the nature of signs. In a Darwinian key, Peirce treats the mind as having adapted to acquire diverse modes of symbolization. As Colapietro summarizes, for Peirce, “the distinctive character of the human mind is the capacity to use inherited signs in innovative ways and, more dramatically, to fashion novel signs.”

Peirce’s thinking about signs led him to develop a semiotic theory. Peirce characterizes “sign-action” as triadic, on the model of gift-giving (in which giver, gift, and recipient are bound together in a single act): signification links, in Peirce’s terms, object, sign, and interpretant. At the same time, semiosis is open-ended and multiple; the interpretant, Colapietro reminds us, “very frequently serves as a sign generating yet another interpretant.” Within the various levels of signifying activity, Peirce identifies numerous subdivisions and permutations of meaning, the most influential of which is the trichotomy of icon, index, and symbol. Iconicity relates to the study of similarity and difference (as in the relationship between a portrait’s “likeness” and a person); indexicality addresses causal connections between objects (as between the wind and the weathervane); symbolization concerns the process by which signs relate to other signs and objects as a function of repetition and habit (the way, for example, a hexagram has come, rather arbitrarily, to signify “Judaism”).

To a large extent, Bleistein functions not as an object lesson in semiotic analysis (in fact, Holmes engages in very little interpretive work vis-à-vis the circus posters), but as an inaugural act that opened the floodgates: after Bleistein, semiotics steadily consolidated its role as the central analytic tendency of copyright jurisprudence. Nevertheless, a few lines pique our interest. For example: “There is no reason to doubt that these prints in their ensemble and in all their details, in their design and particular combinations of figures, lines and colors, are the original work of the plaintiffs’ designer” (emphasis added). Or:

The copy is the personal reaction of an individual upon nature.  Personality always contains something unique.  It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man’s alone.  That something he may copyright unless there is a restriction in the words of the act.

These lines point to the final destiny of Bleistein, which, as we saw in Part 1, was Jerome Frank’s ruling in Alfred Bell Co. v. Catalda: even the trace of a “copyist’s bad eyesight or defective musculature” merited copyright protection. Frank’s vision of copyright meant that to qualify as “new,” a text merely had to be demonstrably different––at a phonemic level, as it were––from other texts. While seemingly a technical legal matter, the class implications of this shift could not be starker.

What brought about the pragmatic embrace of a semiotic theory of copyright was the waning—first in law, later in modernist art, but never in the popular imagination––of two related concepts: originality, a capacity uniquely vested in elite geniuses; and the “work,” that ontologically distinct object, a kind of living miracle testifying to the mysterious powers of creative genius. To flesh out the connections between Bleistein’s inauguration of semiotic analysis in copyright law, the changing status of “originality” and Romantic theories of authorship, and class, we turn briefly to the work of legal scholar Oren Bracha. [3]

Bracha notes that while the “notion of originality was one of the most fundamental elements of the new concept of authorship” inscribed in copyright law under the aegis of Romantic aesthetics, by the early twentieth century originality was in trouble, with Bleistein serving as the emblematic case. In Bleistein, Holmes upheld the circus posters’ copyrightability, simultaneously affirming that circus posters possessed the requisite degree of originality to merit protection and reducing copyright’s originality requirement “to almost nothing” (Bracha, 200).

The “originality doctrine,” a product of  “the dialectical interaction between commercial interest and ideology” appeared on the scene in the late 1820s. Bracha observes that the doctrine was worked out in two different strands of cases: one involved efforts to create “a minimal threshold of creativity and aesthetic merit”; the latter reflected desires for a much higher threshold (Bracha, 201). The most important figure in the development of the first strand of cases was Justice Joseph Story. In the 1845 case Emerson v. Davies, Story wrote: “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 literary act relies on borrowing, and “no man creates a new language for himself.” Suggesting the social vision of knowledge later developed by Peirce, Story insisted that 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.”

Bracha observes that Story’s language is striking in two related respects. First, it was not at all the clichéd vision of nineteenth century Romanticism that scholars have projected upon the history of copyright, and in fact anticipated poststructuralist critique of authorship, attentive to the aesthetic centrality of borrowing, lending, and recycling. Second, it rejected any notion of intrinsic merit or value in artistic objects, turning instead to the market as the sole arbiter of whether or not a given object deserved protection. “Whether to be better or worse… is not a material inquiry in this case.” Again, Peirce’s philosophy seems discernible in embryo: “If worse… His work will not be used by the community at large; if better, it is very likely to be so used. But either way, he is entitled to his copyright, ‘valeat quantum valere potest’” (Bracha, 202-203).

The most important case spurring on the growth of the second strand was 1850’s Jollie v. Jaques, which concerned a piece of music called “The Serious Family Polka” (written for the play The Serious Family and adapted from a German song). The class content of Justice Nelson’s ruling in Jollie v. Jaques is conspicuous. While an “original air” required “genius” for its construction, a “mere mechanic” could prepare an adaptation of that air. (As Michael Denning notes in his Mechanic Accents, “mechanic” was the preferred term for proletarian worker in the nineteenth century vernacular). For Nelson, copyright was meant for a “substantially… new and original work.” Additions and variations penned by ordinary Joes did not deserve the law’s protections. Incidentally, a year later Nelson introduced a notion to US patent law that would evolve into the so-called “nonobviousness requirement,” grounding this decision in the argument that, in order to be patentable, an invention was required to be the work of a genius and not simply the tinkering of an “ordinary mechanic” (N. 57; the case was Hotchkiss v. Greenwood, 52 U.S. 248 [1851]) (204).

For Bracha, the terminus of the Jollie v. Jaques strand is Justice Harlan’s dissent in Bleistein (we recall from Part 1 of this essay that Holmes wrote a friend that “Harlan, that stout old Kentuckian, not exactly an aesthete, dissented for high art”) (205). In the interim, several decisions built upon the logic of Jollie v. Jaques; by attending to them, we can better appreciate what exactly it was that Holmes’s pragmatism was up against.

In Martinetti v. Maguire (1867), for example, the Court refused copyright protection for a play called The Black Rook because of its class markers. Denigrating The Black Rook as as a “mere spectacle,” the Court zeroed in at a rather remarkable level of aesthetic precision. Dialogue that was “very scant and meaningless” pointed to The Black Rook’s status as trash; the fact that the spoken text was “a mere accessory to the action of the piece” indicated that the work was designed for the illegitimate spectatorial pleasures of gawking at bodies and special effects. The real issue, of course, was sex: “The principal part and attraction of the spectacle seems to be the exhibition of women in novel or no dress, and in attractive attitudes or action.” A final scene called “Paradise,” consisting of women “lying about loose” in a “sort of Mohammedan paradise” was especially scandalous. Taken as a gestalt, The Black Rook could not be called a “dramatic composition” without abusing the language and insulting the genius of the English drama. Otherwise, a “menagerie of wild beasts” or “an exhibition of model artistes” might demand copyright protection. As in the hypothetical cases of such absurdities, the Court found that The Black Rook could not be copyrighted (206).

In returning to Justice Story’s common sense reflections on the paradoxes and contradictions of “originality,” Holmes consecrated an “aesthetic relativism” and helped to usher in the age of mass culture in the US. If “originality” was no longer at issue, then copies, and “copies of copies” could be sorted out by means of considering issues of iconicity, indexicality, and symbolization: in the comparison of two texts, in other words, one could look for similarity and difference, influence and filiation, generic commonplaces and permutational tweakings. One could do the work of a judge in copyright cases, that is, perfectly well having adjourned the questions of genius, inspiration, beauty, and the new. In class terms, that matters a great deal, given the quite transparent manner in which copyright discourse ratified elite understandings of plebeian inferiority and the natural inevitability of widespread social, economic, and political inequality.

Finally, it is not difficult to see how Peirce’s semiotics served as the template for the formal test (the so-called “Abstraction-Filtration-Comparison test”) that emerged in the wake of Holmes’s most famous innovation in the field of copyright law: the “idea/expression” distinction. This distinction recognizes the copyrightability of the particular gloss, or “expression,” a writer might make upon a more general “idea,” which can never be copyrighted: for example, a unique expressive “fixation” of the idea of a boy meeting a girl, losing a girl, and winning a girl back again. The “idea/expression” split begat the “levels of abstraction” test developed by Holmes’s disciple Learned Hand in order to administer cases that involved texts with substantial similarities, in the absence of direct evidence of plagiarism; from Hand’s “levels of abstraction” test the modern procedure of sifting through similarities and differences, bracketing unpropertizable elements (such as useful features and common stock elements called scenes a faire), and thereby distilling the protectable essence of a given work.

Flux Capacitors

The final category we will look at is “duration”: pragmatism’s new attentional economy, its novel vision of experience as a ceaseless flow of stimuli and of perception as always involving provisional attempts to attain some temporary organization amidst the chaos of information.

Peirce sees thinking as the province of “constant flux.” Within this flux, the mind arrived at meaning by way of processes of “fixation” (compare with the image of plastic materials hardening and loosening in Peirce’s discussion of habit and doubt), signaled by the title of an important early essay “Fixation of Belief.” Like Peirce, William James held that experience is a continuous stream the elements of which have no distinct boundaries, and hence that the relations between things are as real, as directly experienced, as the things themselves. As Ellen Kappy Suckiel writes, “James argued that if philosophers acknowledged that if philosophers acknowledged the continuous and flowing nature of experience, they would be able to discard the prevalent and long-standing ontological dualisms which had led them into unnecessary paradoxes and quagmires” (Companion, 33). James’s “radical empiricism” invoked the image of “fixation” (in his terms, “distinction”) within a “stream of experience” as the model of thought, adding the pragmatist proviso that the only important questions to ask about this process were those that were in some way useful. Here, we see a conceptualization very close to the paradigm brought by Holmes to the adjudication of copyright disputes.

Thinking specifically about Bleistein, the significance of a Peircean model of perception in duration can be found in Holmes’s refusal to countenance the defense’s insistence that the circus posters’ apparent appeal to a modern, commercial attentional paradigm rendered the posters not-art. After Peirce, the charge of “passing fancy”—ephemerality, distraction, momentary thrills–– lost its sting. Thus Holmes was also, apparently, swayed by Bleistein’s lawyer arguments for the legitimacy of the posters on exactly the same terms used by Donaldson’s counsel:

Picture-posters or show bills, such as these chromolithographs were, are not designed for close inspection or long-continued study, like an oil painting, a steel or wood engraving, or an etching, and they are not to be judged by the same standards. They are intended to catch the eye of the passer on the street, or any one who merely glances at them, and to challenge his attention, — if possible to compel him to look again, so that he will observe what is the subject of the poster and have this forced upon his mind, and will be attracted by it. Their function is to illustrate something, and to advertise it by appealing quickly to the imagination, and conveying instantly a strong and favorable impression. Thus, to be successful, they require artistic ability, and above all things creativeness or originality of a high order, but peculiar. They must be designed boldly, and executed on broad lines, with not much attention to detail, so that the spirit of the picture will stand out at once, and almost leap at you, and will not be lost in a mass of details and minor features.

Holmes would work out his theory of durational aesthetics further in a case form 1908, White-Smith v. Apollo, which allowed for further elaboration of the theory in its shift of focus from a static to a time-based art form: music. More precisely, White-Smith concerned a certain parallax gap that separates static and time-based instantiations of the same musical text: in plain English, it concerned how copyright law, meant to protect “writings,” would deal with the question of whether a musical text was a given arrangement of markings on staff paper or the experiential, durational gestalt apprehended by listening to a performance. The occasion for this legal challenge was the advent of a new form of commodification of the musical text—the roll of paper punched with paper holes prepared for use in conjunction with player pianos––and the resulting dispute about whether piano roll manufacturers were “copying,” for example, a Sousa march when they brought a piano roll version of said march to market.

Holmes’s thinking in his White-Smith decision betrays his deep immersion in a Peircean/Jamesian discourse on the nature of perception. In a series of lines the profundity of which have never been properly highlighted, Holmes essentially developed a musical phenomenology anticipatory of avant garde modernists like John Cage: 

A musical composition is a rational collocation of sounds apart from concepts, reduced to a tangible expression from which the collocation can be reproduced either with or without continuous human intervention.  On principle anything that mechanically reproduces that collocation of sounds ought to be held a copy, or if the statute is too narrow ought to be made so by a further act, except so far as some extraneous consideration of policy may oppose.


The ground of this extraordinary right (i.e., copyright) is that the person to whom it is given has invented some new collocation of visible or audible points, — of lines, colors, sounds, or words.  The restraint is directed against reproducing this collocation, although but for the invention and the statute any one would be free to combine the contents of the dictionary, the elements of the spectrum, or the notes of the gamut in any way that he had the wit to devise.  The restriction is confined to the specific form, to the collocation devised, of course, but one would expect that, if it was to be protected at all, that collocation would be protected according to what was its essence.  One would expect the protection to be coextensive not only with the invention, which, though free to all, only one had the ability to achieve, but with the possibility of reproducing the result which gives to the invention its meaning and worth.

Holmes’s notion of the “rational collocation” of semiotic elements is unthinkable outside of a pragmatist theory of cognition and perception. As a solution to the problem of ontology in copyright law, this was quite an achievement: far more intellectually satisfying, at least, than the “thou shall not steal” dogmatism that prevails in copyright jurisprudence today. And, in the spirit of the season, we might say “dayenu”: this was rather a lot for Holmes to have developed, given the time in which he lived and the pressures from the larger intellectual culture to double down on an ossified bourgeois logic of high art and low trash. Nevertheless, I think that there is a lot more to Holmes’s copyright pragmatism, in class terms. We will conclude with some reflections upon that next time.

[1] For the sake of convenience, I rely on Vincent Colapietro’s entry on Charles S. Peirce in John R. Shook and Joseph Margolis, A Companion to Pragmatism (Blackwell: Malden, MA), 2006. All citations are to Shook and Margolis.

[2] (Bleistein v. Donaldson Lithographing Company, No. 117. Supreme Court of the United States 188 U.S. 239; 23 S. Ct. 298; 47 L. Ed. 460; 1903 LEXIS 1278 (1903). White-Smith Music Publishing Company v. Apollo Company, Nos. 110, 111 Supreme Court of the United States. 209 U.S. 1; 28 S. Ct. 319; 52 L. Ed. 655; 1908 U.S. LEXIS 1766 (1908).

[3] Oren Bracha, “The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright,” 118 Yale L.J. 186 (2008).

10 Thoughts on this Post

  1. Kurt, I just want to thank you for offering this writing on our blog. As I wrote earlier today, we have had a pretty good run lately. We have had some incredible guest posts, including yours; this series of essays on Pragmatism has been, in my view, spectacular. I cannot wait to read the next installment. You have been beyond generous to share this work here. Thanks so much.

  2. Thanks for this excellent post. I’ve thought about this essay for the last few days and keep having a dissonant ring when I think about fallibilism and Pierce, James and Holmes. To my ear fallibilism suggests something other than an objective quality, recognition that “truth” is not always what it appears and that intention is sometimes influenced by external factors including error on the part of the claimant.

    “A little later in the 19th c., William James will pick up on Pierces’ fallibilism, painting the truth as “the opinion which is fated to be ultimately agreed to by all who investigate.”

    It appears that James (via Pierce) is suggesting a “higher” truth claim here maybe universal? Yet Holmes, in the Bleistein case, is open to a broader definition of art and its subjective value. Subjective is my characterization, but appears to be endorsed in your following statement:

    “Fallibilism and a sense of truth as collectively determined and continually revised guide also Holmes skepticism in regard to the evaluative capacities as judges.”

    So my question is what are the distinctions regarding truth claims between Pierce, James and Holmes? They don’t appear to me to be in concert and yet as you describe they all draw from the notion of fallibilism. I guess what I’m really asking is whether fallibilism has an inherent dualistic definition, objective/subjective?

  3. Paul, thanks so much for this comment. I hope I can offer some clarification.

    I chose the term “fallibilism” with some trepidation, as it indeed has a variety of meanings, and isn’t always seen as applicable to the case of James. Whether “fallibilisists” get caught in a higher-order paradox–doesn’t the belief in the provisional nature of truth require a commitment to at least one non-provisional truth, that truth is provisional?–isn’t really my concern. I think that the answer is obviously yes. But does it matter?

    Neither Peirce nor James were treated as consistent thinkers in this respect by subsequent generations of philosophers. They are part of that rogues’ gallery assembled by Deleuze (Heraclitus, Duns Scotus, Hume, Spinoza, Bergson, Kafka) of “failed” thinkers who generated an alternative philosophical legacy (in Deleuze’s terms, take your pick: molecular vs. molar, nomadic vs. sedentary, minor vs. major).

    But that inconsistency didn’t matter to the pragmatists themselves, which is what, as an intellectual historian, I am concerned with. As I understand it, so long as proceeding by treating truth as provisional produced useful effects, or produced more useful effects than would be generated by standing by an alternative rendering of truth as immutable, eternal, etc., such a method was automatically validated in the pragmatists’ eyes. Law is an interesting arena in which to see how this played out in the real world: what was the “cash value” of the pragmatists’ insistence on “cash value”? As direct participants in politics and policy reform, the pragmatists were flops. Or, to put a finer point on it, pragmatist institutions (from the Federal Reserve system to the direct job creation programs of the New Deal to student-centered educational reforms to the War on Poverty) have never been able to match theory and practice and articulate an affirmative defense of provisional, improvisatory, collective, future-oriented action against conservative calls for belt-tightening and cost-benefit analysis. But in law (and culture and theory), pragmatism had quite a significant impact.

    My use of “falliblism” here is intentionally crude–I am trying to organize the related concepts of a social theory of truth, provisionality of knowledge, the evolutionary character of art and science, and the openness to error as a source of truth (in other words, what Livingston points to as Hegel’s pragmatism in the latter’s notion that “the false is no longer false as a moment of the true”) into a single category. I think I have shown that Peirce, James, and Holmes all subscribe to some variant of this principle, but if I haven’t, I would be greatly appreciative of any help you might give on how I could clarify the point.

    • I was wondering about Peirce distancing his own “pragmaticism” from James and the more generic and expansive “pragmatism” of James, Dewey, and others.

      For although the world has James as part of that “rogues’ gallery” of failed thinkers [I’d put it as worthy even if flawed], I’m not sure the world has caught up with CS Peirce yet.

      Kurt, you did set me to some reading– Peirce being one of those fascinating things one always intends to get deeper into: The late Roberta Kelveson seems to be @ ground zero for Peirce, semiotics and law, via Holmes.


      Since Holmes knew Peirce personally from their short-lived Metaphysical Club at Harvard, it might be possible to discern what’s Peirce and what’s James [or what’s both] in his thought. [As the purer thinker, of the three Pierce is to me the most interesting.]

      Excellent stuff, Kurt, and thank you.

  4. Thanks Tom!

    I agree that Peirce is an “untimely” thinker, and it is interesting to see where he pops up in 20th century thought. When I worked in an academic bookstore, customers looking for Peirce texts were always wonderfully varied: feminist theorists, mathematicians, film scholars, classicists, etc.

    On pragmatism vs. pragmatacism, there are many interesting links to pursue. I hope to look at Holmes’s papers this summer (and maybe have a look at the Wm James papers,too) and I am eager to see if I can get at the specific lines of influence and disagreement with more precision.

    One idea I hope to play with, as I revise this stuff, is the link between “pragmaticist” fallibilism and the rise of set theory and so-called “paraconsistent logic” in American mathematics. (I am laughing at myself as I write this because I cannot remember my times tables above 6; I will need some numerate friends to help me through). But this is exciting in its potential usefulness in tying pragmatism to law to politics. “Paraconsistent logic” is hot again on the Left, in light of the work of the French philosopher Alain Badiou on set theory and the “event,” which is one of the most coherent “pragmatist” developments (after Deleuze) in putting “fallibilism” to work.

    I would be interested in your thoughts, Tom, on the ideological character of pragmatism and the history of conservative pragmatism–I guess you could call Popper a pragmatist in certain respects, and Richard Posner, of course, identifies as one, and there is the question of whether Sidney Hook remained a pragmatist after his neo-con turn; but at a cultural level, too, it would be intriguing to think through, for example, that substrate of resistance to environmentalism that insists: “let the earth change!” as opposed to denying the findings environmental science as a kind of conservative pragmatism. I suppose that libertarian supporters of decriminalizing prostitution and drugs would fall into the same category, so long as there was no concomitant turn to hand-wringing or pearl-clutching re: the consequences of changing attitudes towards sex and drugs. I guess I’m asking: is there a conservative pragmatism?

    • Yale scientific theologian D. C. Macintosh–arguably the most influential American theologian of the 1920s–wrote his dissertation on pragmatism, claiming “pragmatism is the new conservativism.” Edward Heimann argued in the 1950s that Reinhold Niebuhr showed that pragmatism was an essentially conservative philosophy.

  5. is there a conservative pragmatism?

    Yes. It’s called “wisdom.”

    Before I seem even more glib than usual, it’s precisely the point: Everybody loves truth [heh heh] but philosophy is the love of wisdom, which isn’t synonymous with truth.

    [I’ll submit wisdom is what you do with truth once you believe you have it, or provisionally have enough of it, or even what you’re obliged to do or not do something even though you know you don’t. But fill in the “wisdom” blank yourself here.]

    To your mention of prostitution, for instance. Thomas Aquinas tells us it’s harmful for a number of reasons–for him, for her, for the child that might come of it. But eradicating it in pursuit of the ideal would bring even worse consequences. Wisdom tells us that the pursuit of the perfect isn’t just the enemy of the tolerably imperfect, it can be downright evil itself.

    One could say the same of the war on drugs, that if you cut your dick off, you probably won’t even notice your herpes anymore. But wisdom forbids offering this as a cure.

    Burkean conservatism offers itself as wisdom-as-prudence, that societies are complex structures, and you better be damn careful before you start ripping out the beams lest you bring down the roof. As to global warming, the pragmatic battlefield isn’t whether it’s happening, it’s Bjørn Lomborg’s: that even if man is to blame, with the present state of technology, trillions upon trillions spent will delay our fate by a handful of days.

    [By contrast, the Montreal Protocol of 1987, outlawing the release of certain monoflouronucleo hydrochloroeuromoroncarbons that theoretically were dooming the ozone layer didn’t cost all that much, and who knows, mebbe we’d be typing this stuff to each other through melanomic fingertips right now without it.]

    What I take from Peirce’s “pragmatic” method is to run the propositions in parallel, if AGW is true, if it’s not; if so, what we can actually to fix it; if we do fix it, how many human beings will starve or at least live even worse than they do now.

    Ooops. That last one let “values” slip in, didn’t it? Personally, I think Peirce the thinker and the human being was fine with “values,” especially for the greatest logician America ever produced. Would that our logicians, scientists, materialists, rationalists and empiricists have so much soul.

    “It seems to me a pity they should allow a philosophy so instinct with life to become infected with seeds of death….”—Peirce, in response to Schiller and some of the [neo-] “pragmatists”

    Oh damn, Kurt, there I go again. I’m so looking forward to your further work on Peirce, and Peirce as part of United States intellectual history—which I hope is still being written. Not only astonishingly brilliant as a logician, but wise. This is a philosopher.

    Seeing him through James and especially Holmes’ eyes in their papers is an exciting prospect. Few really knew him and he never kept a decent academic job so we don’t even have the testimony of his students.

    The Mormons love him, BTW. Pretty cool.


    ” “[I]f the universe conforms . . . to certain highly pervasive laws, and if man’s mind has been developed under the influence of those laws, it is to be expected that he should have a natural light, or light of nature, or instinctive insight, or genius, tending to make him guess those laws aright, or nearly aright.” In short, “the reasoning mind is [it]self a product of this universe. These same laws are thus, by logical necessity, incorporated in his own being…” (CP 5.603).

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