Facebook comments:

Copyright is Unconstitutional
≡ Menu

Copyright is Unconstitutional

Update: See my podcast episode KOL067 | Patent and Copyright are Unconstitutional!.

I noted in a recent post:

Dyn urges people to sign this petition to oppose SOPA. It is a fairly strong opposition to the proposed legislation, even though it also implies there can be “reasonable copyright law.” There cannot be. Genuine rights cannot conflict; when statist positive law sets up rights that “conflict,” or laws that are “in tension” (such as the “tensionbetween antitrust and IP law), that’s a red flag that at least one of these laws is illegitimate. When people try to reconcile copyright with free speech—to find the right “balance”1 —the result is inconsistency, and lack of a principled approach. Thus, you see people saying, sure, we need to stop piracy—but these laws go “too far”; we need to have a “reasonable” copyright regime, not one that results in “too much” censorship. Of course this mirrors the content of the Constitution itself, which enshrines both copyright (which results in censorship) and free speech. Since most people are legal positivist and hold the fallacious view that the state is legitimate, they accept the Constitution as legitimate and try to square unsquarable things. The result is cognitive dissonance. (One could argue, by the way, that the First Amendment, ratified in 1791, overrules the Copyright clause, ratified along with the Constitution in 1789, since they are incompatible and later-ratified (legislation and) constitutional provisions implicitly overrule earlier (legislation and) constitutional provisions, just as the Twenty-first Amendment (1933) repealed the alcohol prohibition of the Eighteenth Amendment (1919).2

When I first thought of this argument, I thought it was a stretch—wishful thinking. But the more I think about it the more I am drawn to it. Other libertarians like Spooner and Roderick Long have argued that slavery “was” “really” unconstitutional from the get-go even if the framers … didn’t realize this.3 And some libertarian scholars have argued that the 14th Amendment bans state sodomy laws (say), even if the Ratifiers would not have realized this consequence.4 Clearly copyright is form of censorship. The the Supreme Court recognized this its most recent copyright decision, Golan v. Holder (the case authorizing Congress to re-copyright public domain works), “Concerning the First Amendment, we recognized that some restriction on expression is the inherent and in-tended effect of every grant of copyright.” And clearly the First Amendment prohibits federal censorship laws. So: the First Amendment  later, and thus implicitly repealed the copyright clause. Or at least the copyright act—the way it’s implemented to permit books to be banned and movies burned.5 The more I think about this, the more I think it’s correct. There is a tension between copyright’s censorship, and the free speech and free press protections in the First Amendment (as there is a “tensionbetween antitrust and IP law). But since the free speech provisions came later, in case of conflict, they prevail. Copyright has to go. It is unconstitutional. The Court sidesteps this argument by saying that “Copyright Clause and the First Amendment were adopted close in time,” (Golan, quoting Eldred, 537 U. S., at 219), and thus tries to find a balance between them or even argue that one purpose of copyright is to promote freedom of expression by providing “a marketable right to the use of one’s expression,” thus supplying “the economic incentive to create and disseminate ideas.” But two years is not that close in time. In any case the First Amendment came after the Copyright clause. If they are incompatible, the First Amendment has to win. Legislation is often repealed a year or two after it is enacted. The Twenty-first Amendment (1933) repealed the alcohol prohibition of the Eighteenth Amendment (1919), even though they were only 14 years apart, and thus “close in time”. The Constitution itself overrode the Articles of Confederation because it came after—even though they were fairly “close in time.” The Court is wrong, in my view.

Update: Another argument that patent and copyright are both unconstitutional is that the authorization for such laws in the Constitution requires the law to actually “promote the progress” of “Science” (the creative arts): “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” However, there is no evidence that these laws do this; in fact it appears that IP stifles and distorts innovation, and imposes many costs on the economy and our liberties.6

Update: Jacob Huebert points me to this article: A Free Speech Theory of Copyright, Steven J. Horowitz, which recognizes that there is a “constitutional balance … between the Copyright Clause and the First Amendment”—in other words (my words), the restrictions of copyright are a type of censorship that are incompatible with free speech. As Horowitz asks, “How can a body of law that functions to empower private actors to restrict expression be accommodated within a constitutional order so committed to the liberty of the mind?” Further, I also think the damages that can be awarded in copyright cases are so insanely high that it must violate the 8th amendment’s ban on excessive fines/cruel-unusual punishment. As I argued in Copyright Censorship versus Free Speech and Human Rights; Excessive Fines and the Eighth Amendment:

Another point worth considering: in light of extremely excessive penalties and damages awarded for copyright (and patent) infringement (millions of dollars for downloading a few songs, far beyond actual damages, e.g., in the Jammie Thomas case; see the $4.5 billion per year estimate by John Tehranian, in We are all copyright criminals: John Tehranian’s “Infringement Nation”), could it be argued that such penalties are “excessive fines” in violation of the Eighth Amendment? As far as I know this has not been argued against, but I see no immediately obvious reason why such argument might not work (especially given that the Eighth Amendment was ratified in 1791, two years after the Copyright and Patent Clause).7

Update 2: see also Neil Netanel – Copyright’s Paradox for Freedom of Expression: Engine or Brake?; Should Copyright Be Allowed to Override Speech Rights?. And my posts SOPA is unconstitutional and Should Copyright Be Allowed to Override Speech Rights?.

Update 3: Jason Beesinger called to my attention an interesting post by Terry Hart, “Copyright and the First Amendment: The Unexplored, Unbroken Historical Practice, Part 2.”Hart makes the intriguing observation that until a few decades ago there was virtually no  “scholarship concerning a potential conflict between the Copyright Clause of the US Constitution and the free speech and press protections of the First Amendment.” As he notes:

Eldred devoted only two sentences to the history of the two clauses: “The Copyright Clause and First Amendment were adopted close in time. This proximity indicates that, in the Framers’ view, copyright’s limited monopolies are compatible with free speech principles.”

Hart then takes up my argument in this post, that copyright is unconstitutional because the First Amendment came after, and thus partially overrides the copyright clause, and observes:

Kinsella is not the first to say this. For example, this is from a 1986 law review article: “Arguably, then, the [Copyright] Act is unconstitutional, since the free speech guarantee is an amendment which supersedes prior inconsistent constitutional text.”

The quoted article is David E. Shipley, Conflicts Between Copyright and the First Amendment After Harper & Row, Publishers v. Nation Enterprises, 1986 BYU Law Review 983, 985 (1986). However, Shipley ultimately rejects the argument:

Notwithstanding these arguments, … the copyright law is constitutional.

After all, we can’t have an “absolutist” view of the First Amendment. Why, that “would mean that perjury, obscenity and mail fraud were constitutionally protected.” Heavens to Betsy! We can’t have that, now can we? Ergo, because “we” “need” to outlaw … obscenity … copyright law must be okay even though it seems to fly in the face of the First Amendment. Whatever. Hart, who elsewhere on his blog frequently and positively cites the work of pro-IP Objectivist Adam Mossoff, unsurprisingly rejects my  argument, and correctly noting that it is a “minority” position. The majority position is, by contrast: “The view of the First Amendment entirely displacing the earlier text is universally rejected, I think properly, as to copyright.” (C. Edwin Baker, First Amendment Limits on Copyright, 55 Vanderbilt Law Review 891, 893 (2002).) Hart then finds another problem with my argument:

But there’s an even more compelling reason why the subsequent adoption of the First Amendment wouldn’t have or wasn’t intended to impact Congress’s copyright authority at the time. Twelve of the original thirteen US states (Delaware was the lone exception) adopted copyright acts between 1783 and 1786 — before the current Constitution replaced the Articles of Confederation. Of those twelve colonies, five of them provided for the freedom of the press in either their state constitutions or separate bills of rights before passing their own copyright laws: Virginia,8 Pennsylvania,9 Georgia,10 South Carolina,11 and Massachusetts.12 Two of the colonies did not enact freedom of the press clauses until after passing their own copyright acts13 while the remaining five did not include “bill of rights” style provisions in their constitutions prior to the ratification of the US Constitution.14 So by the time delegates arrived to draft the US Constitution, over one third of the states had enacted copyright legislation after providing for freedom of the press. This lends solid support to the idea that early US copyright law was perceived as being wholly consistent with the guarantee of a free press.

I don’t find this wholly persuasive. The fact is that copyright does cause censorship and thus infringes freedom of press and speech, which is protected by the First Amendment. Since the latter came later, it supersedes the former. The fact that some people did not “perceive” there to be a conflict does not mean there is not. (Lysander Spooner, whom Hart cites approvingly on the one issue Spooner was bad on—IP (see Hart’s post 15 Objections to Copyright from 1855)—also argued that even slavery was originally unconstitutional even though it was contemplated by the text (see n.3 and text at n. 3 above). The First Amendment-vs-copyright argument is not nearly as much a stretch as Spooner’s argument re slavery.) If some state legislators felt copyright and free speech were compatible, they were simply wrong. Their error does not change the incompatibility between two conflicting provisions of the federal Constitution. The question is whether copyright law is incompatible with the First Amendment, not whether state legislators around the same time thought they were compatible. I’ll also say that the Bill of Rights, in my view, only affected the federal government’s power to enact copyright law. This is because the Bill of Rights limits federal, not state power—e.g. there were established state religions in some of the States in 1791, such as Congregationalism in Massachusetts. So even if some states had copyright law that was held by them to be compatible with their own constitutions, and even if the First Amendment would not affect those state laws, this does not mean the fedgov had the authority to enact copyright, if it is prohibited by the First Amendment. Consider also that in Thomas Jefferson’s Letter to James Madison, August 28, 1789 (On the liberty to write, speak, and publish and its limits), he proposes to James Madison, then in the process of drafting the Bill of Rights, that the following be incorporated into the Bill of Rights:

Art. 9. Monopolies may be allowed to persons for their own productions in literature and their own inventions in the arts for a term not exceeding — years but for no longer term and no other purpose.8

If such a provision had been included, then there could be no argument that copyright is unconstitutional (though copyright longer than X years would be, unlike now). The courts would have to find a “balance” between the conflicting free speech rights and the copyright clause. But the new copyright-monopoly amendment was not added to the Bill of Rights. The old 1789 copyright clause was left alone. That means, to my mind, that the 1791 First Amendment supersedes the copyright clause to the extent they are incompatible. Finally, let me say that I agree with John Hasnas that statutory law—and the Constitution is a statute—is often vague and ambiguous. There is not always an “objective meaning” to “find.”9 Given this, there is nothing wrong with interpreting ambiguous provisions in favor of liberty and justice.10 Since copyright is unjust and violates rights, and since it conflicts with free speech rights (which can be justified as a type of property rights and/or as a prophylactic limitation on dangerous state power), and since there is a decent argument against the copyright law, this is the construction we should favor—just as we ought to favor a construction of the Constitution that prohibits slavery than one that permits it or establishes it. The goal is justice, not finding the “right” interpretation of a statist document that often has no objective interpretation anyway. This is especially so in the case of copyright, which is coming to be one of the greatest threats to liberty and the most dangerous weapons in the state’s arsenal.11 It is especially important to defeat copyright, and to use all the arguments at our disposal to combat it. Update: See also EFF, Record Labels’ $1.9 Million Win in Thomas Retrial Constitutional?, observing that ““grossly excessive” punitive damage awards (e.g., $2 million award against BMW for selling a repainted BMW as “new”) violate the Due Process clause of the U.S. Constitution”, but for some reason not mentioning the Eighth Amendment as possible grounds for a similar argument. See also Obama Sides With RIAA, Supports $150,000 Fine per Music Track.

Update: From a Facebook post:

I have argued before that copyright and patent are unconstitutional for a number of reasons. 1. It does not promote the progress of science (writings, copyright) and the useful arts (inventions–patent). [The Overwhelming Empirical Case Against Patent and Copyright] Although this qualifying phrase is arguably merely precatory, not a real limit on the power. Still. An argument worth making. 2. both patent and copyright clearly infringe freedom of speech and press, and therefore they conflict with the first amendment. Instead of trying to “balance” them to resolve this “tension,” the courts should declare the copyright and patent statutes to be unconstitutional since the bill of rights was ratified in 1791, two years *after* the 1789 constitution/copyright-patent clause. 3. The penalties especially for copyright are clearly excessive in view of the 8th amendment. 4. As Jeffrey Tucker and I were discussing just a few days ago: the patent and copyright laws also arguably violate both the fifth amendment (they amount to takings of private property — see Intellectual Property Rights as Negative Servitudes) and the 4th amendment (since enforcement of copyright etc. leads to invasions of privacy, searches of papers etc.). I had lunch the other day with law professor Josh Blackman, and he was asking me whether repealing patent law (say) would amount to a taking. I am not sure how the courts would or have treated this, but I doubt this would be the case. In any case, talking about this with Jeff–he suggested that the taking is the patent grant itself. The patent is the taking of property rights. The abolition of a patent privilege is not a taking. 5. Federal trademark law is clearly unconstitutional since it is not authorized at all; that is why the Lanham Act applies only to marks used in “interstate commerce” and does not preempt state trademark laws; but of course the interstate commerce clause ought not be used as a grant of plenary legislative power. 6. finally–the copyright clause authorizes congress to protect an author’s “writings.” So to the extent copyright law covers things other than writings–like paintings, movies, music, sculptures, photographs–it is also clearly unconstitutional.

Update: See also the ACLU’s arguments for why gene patents are unconstitutional:

What laws apply to human gene patents? The ACLU and PUBPAT believe that gene patents violate both existing patent law and the Constitution.

  • Patent law has long held that products of nature and laws of nature are not patentable subject matter. The USPTO is failing to abide by this precedent when it grants patents on human genes. Human genes, even when removed from the body, are still products of nature, and their associations with diseases are laws of nature.
  • The First Amendment protects the freedom of thought, academic inquiry, and the exchange of knowledge and ideas. Gene patents implicate the First Amendment because the very thought that there is a relationship between specific genetic mutations and diseases has been patented and because scientific inquiry is limited.
  • The Patent Clause in Article 1, Section 8 of the U.S. Constitution gives Congress the power to award patents “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Human genes are not inventions, and awarding patents on them does not promote the progress of science. Instead, gene patents slow scientific advancement, because there is no way to invent around a gene – the gene is the basis for all subsequent research.

Update: See also Russell Hasan’s argument for why copyright and free speech are compatible, as discussed in More defenses of IP by the Federalist Society.

  1. See SOPA Needs Work to Address Innovation Considerations, speaking of the need to “balance key innovation, privacy and security considerations with the need to thwart the threat rogue websites pose”. []
  2. For more on this argument, see my post Copyright Censorship versus Free Speech and Human Rights; Excessive Fines and the Eighth Amendment; also Judge Rules EA has “1st Amendment Right” to Depict College Football Players; Cato/Reason/CEO brief opposing medical diagnostic process patents as violating freedom of speech. []
  3. See Lysander Spooner, The Unconstitutionality of Slavery; Roderick Long, Federalism and the Bill of Rights: The Pros and Cons of Kelo; see also Liberty and the Constitution in the Work of Lysander Spooner; Was Slavery Constitutional Before the Thirteenth Amendment?: Lysander Spooner’s Theory of Interpretation, by Randy E. Barnett; see also my exchange about Spooner’s argument in the comments to my post “Is Gay Marriage a Constitutional Right?”. []
  4. See my article Supreme Confusion, Or, A Libertarian Defense of Affirmative Action; also Libertarian Centralists. []
  5. See The Patent, Copyright, Trademark, and Trade Secret Horror Files. []
  6. The Overwhelming Empirical Case Against Patent and Copyright; There’s No Such Thing as a Free PatentCosts of the Patent System RevisitedMasnick on the Horrible PROTECT IP Act: The Coming IPolice StateCopyright and the End of Internet Freedom. []
  7. See also Eighth Amendment and copyright trolls; Mike Masnick’s Techdirt post Do The Statutory Damages Rates For Copyright Infringement Violate The Eighth Amendment?. []
  8. See my post Thomas Jefferson’s Proposal to Limit the Length of Patent and Copyright in the Bill of Rights. []
  9. See John Hasnas, The Myth of the Rule of Law; also, my “Legislation and Law in a Free Society.” []
  10. See my post Higher Law. []
  11. See “Masnick on the Horrible PROTECT IP Act: The Coming IPolice State,” “Copyright and the End of Internet Freedom,” “Where does IP Rank Among the Worst State Laws?”, and “Patent vs. Copyright: Which is Worse?”. []
Share

{ 40 comments… add one }

  • Deefburger November 27, 2011, 10:28 am

    Copyright is a monopoly before it’s enforced with censorship. Same with Patent. Same with competing currency laws. All three are monopolies over the natural rights of the rest of the people. Nowhere in the constitution is power enumerated that gives anyone universal control over the people themselves. All enumerated powers are restricted to power within the system of government, and not a declaration of power over the people. With the exception of Copyright and Patent. Those were meant to be “gifts” of power to individual people, but are now battle hymns and drum beats for the imposition of the enforcement of tyranny, on behalf of the people who own the ideas and information.

  • Crosbie Fitch November 27, 2011, 10:45 am

    Copyright is not constitutional. And even if Madison had properly empowered Congress to grant that privilege it would be at odds with the natural rights conception of liberty, and Paine’s proposition that governments should only exist to protect rights, not to derogate from them (however appealing the pretext that this is in the people’s best interest).

    See The 18th Century Overture – A Crescendo of Copyright – Natural Finale and Reprise to understand why the ‘copyright clause’ was nothing of the sort. One cannot secure an author’s privacy by annulling the liberty of the public to print copies of their published works, but one can certainly make quite a bit of money that way (for oneself and one’s cronies) and obtain a degree of control over the press.

  • Deefburger November 27, 2011, 11:26 am

    Another form of cognitive dissonance is the idea of enforcement itself. We have a judicial system that requires the assumption of innocence. But, to enforce an act of legislation is to place the officers of the court system in the position of having to assume guilt during the act of enforcement. This goes hand-in-hand with the idea of monopoly power and the need of the monopoly to assume guilt to enforce the monopoly. All people are assumed to be criminals when any monopoly exists.

    Arrest and detainment require substance of evidence of guilt. They require that there be evidence of harm and/or injury before the act of arrest and detention. A monopoly power pre-supposes guilt upon all people by definition of the monopoly itself. It is a prohibition, a creation of harm to a few where no actual harm or injury is in evidence. The legislation itself becomes the proof of guilt, and the “crime” is the act of violating the prohibition. The only real harm and injury is to the legislation, not the people.

    Justice must drop the scales and grab the sword of power with both hands in order to enforce law. She is no longer Justice in this act, but only the sword wielder for tyranny. The scales must be used a priori to the use of the sword or there is no justice. And those scales must have real evidence upon them or they have only an act of legislation weighing only half the decision.

  • Dan November 27, 2011, 8:32 pm

    Copyright is Constitutional. Remember that the Constitution was an anti-free-market protectionist document from the start, even more so before the income tax. The Bill of Rights was a bribe.

  • Attorney November 28, 2011, 1:19 pm

    Are you an idiot? The Copyright Clause is expressly included in the Constitution and the First Amendment does nothing to change that. Perhaps you should read what the First Amendment actually says:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    Thus, the Amendment is clear: it places a restriction on Congress not to make any laws abridging the freedom of speech.

    Contrast that with the Copyright Clause, Article I, Section 8, Clause 8:

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

    Thus, Congress is not abridging speech by doing precisely what the Constitution permits (i.e., promoting science and useful arts by securing FOR LIMITED TIMES the exclusive rights to THEIR writings and discoveries). It’s permitting Congress to provide a means for enforcing individuals’ rights in THEIR intellectual property.

    This is the dumbest post I’ve ever read, and that’s saying something.

    • Stephan Kinsella November 28, 2011, 4:05 pm

      The Copyright Clause is expressly included in the Constitution and the First Amendment does nothing to change that. Perhaps you should read what the First Amendment actually says:

      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

      Thus, the Amendment is clear: it places a restriction on Congress not to make any laws abridging the freedom of speech.

      Yes, but copyright DOES abridge freedom of expression, freedom of the press. Books have been ordered not published–this is censorship. (See http://blog.mises.org/11600/the-patent-copyright-trademark-and-trade-secret-horror-files/ and http://www.lewrockwell.com/blog/lewrw/archives/28808.html )

      Thus, Congress is not abridging speech by doing precisely what the Constitution permits (i.e., promoting science and useful arts by securing FOR LIMITED TIMES the exclusive rights to THEIR writings and discoveries). It’s permitting Congress to provide a means for enforcing individuals’ rights in THEIR intellectual property.

      It permitted it in 1789. That would permit a law that gave authors a private right to use state courts to censor what other people say or print. It would permit free speech to be abridged by law. But in 1791 the Constitution was amended to say such laws are forbidden.

  • Crosbie Fitch November 28, 2011, 2:09 pm

    Attorney, I agree. Congress is empowered to secure authors’ exclusive right to their writings, to their intellectual works in their private possession, their intellectual property. However, it says nothing about granting the privilege of a transferable monopoly, though Jefferson did suggest an amendment that would do so.

    As to an author’s exclusive rights to their writings these are self evidently their natural power to prevent pickpockets accessing the manuscript in their pocket, or burglars from rifling through their desk drawers. However, no author has the natural power or right to destroy everyone else’s printing press or imprison all and any actors or singers who dare recite their published works. For such power you need a grant from the state – a privilege such as Queen Anne granted in1709. The Constitution did not empower Congress to grant such a privilege – whereas it did empower Congress to grant such a privilege as Letters of Marque (for use against an enemy). That Congress/Madison re-enacted the Statute of Anne anyway doesn’t mean the Constitution empowered it to do so…

    • Stephan Kinsella November 28, 2011, 3:58 pm

      I think Crosbie is wrong. He has an idiosyncratic definition of IP. He defines copyright as basically the consequence of having private property rights in one’s body and other property, so that one is able to keep information secret. But if this is right, the purpose of the copyright clause was to give Congress the power to–do what? To protect property rights? But that was the province of state law. Just as the feds cannot make a law against murder so they cannot make laws protecting property rights. Criminal law, contract law, property law, family law–were left to the States.

      ANd why would there be a “for a limited time” provision?

      Obviously the clause WAS designed to empower Congress to give a certain type of enforceable monopoly power to writers. THe argument I am advancing is that if a copyright act tries to do this by giving authors the right to actually censor what other people publish, then it runs afoul of the First Amendment’s prohibition of laws that infringe free speech and freedom of the press. And since the First Amendment came later, it therefore partially repealed the Copyright Clause, which came earlier. To avoid infringing the First Amendment any copyright law would have to steer clear of infringing freedom of expression. I am not sure how this could be done.

      • Crosbie Fitch November 29, 2011, 3:05 am

        Stephan, I don’t know why you’re so keen to join the maximalists in believing that the clause empowers Congress to grant a monopoly when it clearly doesn’t. It may be part of the American psyche to read a grant of monopoly there, and if people call it the ‘copyright clause’ enough then perhaps the word will insert itself by osmosis, but it isn’t actually present. I have a hard enough time arguing with the ‘progress clausists’ who instead believe that Congress is empowered to To promote the Progress of Science and useful Arts by any means necessary, i.e. abridging liberty (freedom of speech), etc. and their criterion for the limit of power isn’t whether an author’s exclusive right is secured, but whether it’s possible to maintain that progress is achieved as a consequence of whatever unjust laws are enacted (with securing the right a mere pretext).

        The clause is not a simple protection of a material property right because it’s about an author’s writings, not the paper they fix them on, and about an inventor’s designs, not the wood they make their prototype from. And yes, it’s about their natural right to exclude others from them, from removing them, viewing them, copying them, etc.

        As for limited times, the lifetime of the author or inventor is limited (people do not have rights beyond their natural lifespan). Even so, it’s likely Madison had a state granted monopoly in mind. However, that he planned to enact copyright and patent doesn’t mean his clause actually empowered Congress to do so (as Jefferson noted in pointing out amendments that explicitly granted monopolies). Securing an author’s exclusive right to their writings is not granting a monopoly for the benefit of the press. It is strange that people persist in believing the monopoly of copyright to be an author’s exclusive right and yet its fiercest enforcers are immortal publishing corporations.

        I suspect you are wedded to the belief that the clause does empower the granting of monopolies because you have many anti-monopoly arguments that rely upon this premise.

        If you realise the clause does not empower the granting of a monopoly, but only the securing of the author’s natural exclusive right to their writings, then it’s clear that there’s no abridgement of anyone else’s liberty. People cannot be at liberty to communicate that which is private from them and unknown to them, just as they have no liberty to burgle another’s house. It is clearly a nonsense to claim a natural right to prevent someone from communicating a poem that one has voluntarily disclosed to them, or printing it, etc. There is no such right and being non-existent it cannot be secured.

        • Stephan Kinsella November 29, 2011, 7:51 am

          I think you’re just crankish on this, Crosbie. Your theory makes no sense to me. The clause says: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

          An exclusive right for a limited time to a writing–that is a copyright-like monopoly. It is not a protection of physical property; and your alternative is incoherent. The idea that it is limited because of the author’s life is ridiculous. This is just now how legal writing is interpreted.

          Let me ask you: is this your own pet theory, or are you aware of any serious scholarly work that makes this argument? Someone with a sustained argument, clear and non-idiosyncratic words and concepts? If so, could you point me to it?

          It may be part of the American psyche to read a grant of monopoly there, and if people call it the ‘copyright clause’ enough then perhaps the word will insert itself by osmosis, but it isn’t actually present.

          Exclusive. Right. To. A. Writing. For. A. Limited. Time.

          I have a hard enough time arguing with the ‘progress clausists’ who instead believe that Congress is empowered to To promote the Progress of Science and useful Arts by any means necessary, i.e. abridging liberty (freedom of speech), etc.

          But they are right.

          and their criterion for the limit of power isn’t whether an author’s exclusive right is secured, but whether it’s possible to maintain that progress is achieved as a consequence of whatever unjust laws are enacted (with securing the right a mere pretext).

          I don’t think it’s limited by either one. The purpose is merely precatory. It’s not a limit on the power, but an explanation of why the power is granted to Congress. The clause grants Congress the power to make federal law that provides authors with exclusive rights to their writings for some limited period of time. We call this copyright.

          The clause is not a simple protection of a material property right because it’s about an author’s writings, not the paper they fix them on, and about an inventor’s designs, not the wood they make their prototype from.

          There are only two possible laws that could make any sense here. One, a law protecting physical property–in your body and other things–that as a practical matter gives you the ability to keep your writings secret until you want to reveal them, or to make inventions etc. But you have admitted it does not mean this. Or two, a copyrihgt/patent type monopoly. You seem to think it’s some spooky third thing which you are unable to define except by your crankish use of Ye Olde Fashioned Language with Mystical Import.

          And yes, it’s about their natural right to exclude others from them, from removing them, viewing them, copying them, etc.

          But proeprty rights in body and home etc., which the states already protect, is sufficient for this. What possible law are you imagining by the feds that adds to this, that does not grant a copyright?

          As for limited times, the lifetime of the author or inventor is limited (people do not have rights beyond their natural lifespan).

          wow, this is such a weak argument. yo uwould get laughed out of court with this one. I mean come on.

          Even so, it’s likely Madison had a state granted monopoly in mind. However, that he planned to enact copyright and patent doesn’t mean his clause actually empowered Congress to do so

          I agree, it doesn’t mean that it did. However, it did.

          (as Jefferson noted in pointing out amendments that explicitly granted monopolies).

          What exactly are you talking about? Link please? Explanation? Securing an author’s exclusive right to their writings is not granting a monopoly for the benefit of the press. It is strange that people persist in believing the monopoly of copyright to be an author’s exclusive right and yet its fiercest enforcers are immortal publishing corporations.

          I suspect you are wedded to the belief that the clause does empower the granting of monopolies because you have many anti-monopoly arguments that rely upon this premise.

          This is unfair and dishonest of you. I would love for you to be right: for the clause NOT to authorize the coyright system. Then that would be another argument against its validity. Then I would not *need* my anti-monopoly arguments. The only reason I oppose copyright is because it IS a monopoly. If the clause did not permit a monopoly to be granted, why would I be against this?

          If you realise the clause does not empower the granting of a monopoly, but only the securing of the author’s natural exclusive right to their writings,

          What does it MEAN to “secure a natural exclusive right” other than protecting their physical property rights, which the states were already doing? What kind of federal “securing” law do you think the clause would authorize? What would it SAY??

          then it’s clear that there’s no abridgement of anyone else’s liberty. People cannot be at liberty to communicate that which is private from them and unknown to them, just as they have no liberty to burgle another’s house.

          are you seriously envisioning a federal law that simply makes declarations, that says “Hey, the states are protecting your bodily and property rights, and, like, this is cool, since it doesn’t let other people know your private stuff.” Is that the kind of federal “law” you think is authorized here? Are you confusing natural “law” with state positive law?

          It is clearly a nonsense to claim a natural right to prevent someone from communicating a poem that one has voluntarily disclosed to them, or printing it, etc. There is no such right and being non-existent it cannot be secured.

          there is no such natural right, but there is a legal right and it can be and has been secured. Are you under the naive impression that the Constitution only permits laws that comply with natural law? If so, you are sadly mistaken.

          • Alexandre Oliva November 29, 2011, 7:46 pm

            Consider such a simple law (properly translated to legalese) as:

            1. authors and inventors will not be forced to publish their writings or discoveries

            2. anyone who forces such a publication will be publicly humiliated, and then decapitated

            Such a law would prevent courts of law to order authors to publish their writings, or states from passing laws that enabled say banks to force authors to publish works so that the proceeds go to the bank to liquidate debt accrued by the authors.

            Now, it remains to be shown that such a law would promote the progress of science and of useful arts, but the same can be said about copyright. Except that copyright doesn’t fit the constitutional mandate in the first place, because it enables congress to pass laws that secure authors’ exclusive rights to their writings. But what rights are these that they have and congress is entitled to secure exclusively to them? The right to publish? The right to copy? The right to write? The right to read? The right to modify? The right to perform in public? In private? Which of these are actually covered by copyright, or ever have?

          • Stephan Kinsella November 29, 2011, 9:38 pm

            Oliva:

            Consider such a simple law (properly translated to legalese) as:

            1. authors and inventors will not be forced to publish their writings or discoveries

            That is not a law. Will not be forced by whom? And who is doing this anyway? If state law protects body and property rights, people cannot be forced to publish. So, the federal law would be pointless.

            2. anyone who forces such a publication will be publicly humiliated, and then decapitated

            I have no idea waht this even means. What does it mean to “force a publication”? It is facially ridiculous to suggest that this is really the kind of law contemplated by the copyright clause. And that is why I asked Crosbie what he had in mind. I knew that an attempt to do it would look ridiculous.

            Such a law would prevent courts of law to order authors to publish their writings, or states from passing laws that enabled say banks to force authors to publish works so that the proceeds go to the bank to liquidate debt accrued by the authors.

            … is this really a pressing problem? Is this really why you think Congress included that provision? REally? They were worried about state laws forcing authors to publish secret manuscripts? REALLY?? Are you serious??

            Now, it remains to be shown that such a law would promote the progress of science and of useful arts,

            No, it does not, since that is not a limitation on the power. It is merely precatory. Just like the preamble to the second amendment (“A well regulated Militia, being necessary to the security of a free State”) does not actually limit the right granted (“the right of the people to keep and bear Arms, shall not be infringed”) . It’s merely a description of why the power is granted (or right is recognized).

            but the same can be said about copyright. Except that copyright doesn’t fit the constitutional mandate in the first place, because it enables congress to pass laws that secure authors’ exclusive rights to their writings. But what rights are these that they have and congress is entitled to secure exclusively to them? The right to publish? The right to copy? The right to write? The right to read? The right to modify? The right to perform in public? In private? Which of these are actually covered by copyright, or ever have?

            This is a grant of power to Congress. The necessary and proper clause allows Congress latitude and discretion to enact statutes to exercise the power. Unfortunately.

          • Alexandre Oliva November 30, 2011, 1:24 pm

            > It is facially ridiculous to suggest that this is really the kind of law contemplated by the copyright clause

            Is it any more ridiculous than suggesting the constitution from back then contemplated the current copyright regime? I mean, seriously, back then, copyright was a 14-years-long privilege to printing and selling a written work in its original form, period. Not transferable, not longer than a lifetime, not about songs and records and movies and software and whatnot, not about publicly performing or distributing or lending or borrowing or sharing or modifying, plus DRM/DMCA, 3-strikes, filtering and what not. Saying congress had current copyright in mind, as you imply when you say the constitution contemplated copyright, is no less absurd than saying it contemplated no more than reassuring authors they wouldn’t be forced to publish their works against their will, even though the latter would fit the mandate written down in the constitution (and not conflict with the amendment while at that), whereas the former would, not only for the current copyright regime (as you correctly pointed out), but for the original copyright statutes in the US.

            You still haven’t given any clue as to what exclusive right authors hold over their writings that congress is entitled to secure to them alone. Why did you dodge that sequence of questions?

          • Crosbie Fitch December 1, 2011, 11:48 am

            > An exclusive right for a limited
            > time
            to a writing–that is a
            > copyright-like monopoly.

            Only in today’s copyright corrupted vocabulary (not in the vocabulary of the Framers).

            That copyright has been described as a ‘legislatively created exclusive right’, or ‘exclusive right’ for short, doesn’t make it an author’s right – even though everyone has been brainwashed into understanding copyright as an ‘exclusive right’ precisely in order that it fits with the words used in the Constitution.

            In any case, you have to wait until at least 1790 for this ‘right’ to be brought into existence.

            > It is not a protection of physical
            > property; and your alternative is incoherent.

            Not at all. Any author or inventor instinctively recognises their natural power and right to prevent burglars obtaining access to their work and making & distributing copies, communicating or otherwise exploiting it – even if they leave behind the materials of paper & prototype.

            > The idea that
            > it is limited because of the author’s life is ridiculous.
            > This is just now how legal writing is interpreted.

            It is more ridiculous that an author’s ‘right’ can extend beyond their lifetime, let alone that it is alienable from them whilst they’re alive.

            As I said, Madison no doubt had the intention of granting copyright in mind, but that doesn’t mean it’s nonsensical for Congress to have power to secure an author’s natural right for limited times, e.g. limited to the author’s lifetime, or possibly shorter (if someone can prove they were in possession of a discovered/stolen copy of a manuscript more than 20 years prior to date say).

            >
            > Let me ask you: is this your own pet theory, or are you aware
            > of any serious scholarly work that makes this argument?
            > Someone with a sustained argument, clear and
            > non-idiosyncratic words and concepts? If so, could you point me to it?

            I’ve not come across anyone else arguing that ‘secure the exclusive right’ only empowers Congress to secure a natural right, as opposed to grant a privilege.

            Being an “Earth orbits the Sun – not vice versa” class of argument, I’m not really surprised that I’ve not come across it elsewhere.

            > Exclusive. Right. To. A. Writing. For. A. Limited. Time.

            ‘Right’ is the key word there, and I’m arguing that in conjunction with “secure” it can only mean a pre-existing natural right, not a privilege yet to be granted (or previously granted by Queen Anne).

            >
            >

            I have a hard enough time arguing with the
            > ‘progress clausists’ who instead believe that Congress is
            > empowered to To promote the Progress of Science and useful
            > Arts by any means necessary, i.e. abridging liberty (freedom
            > of speech), etc.

            >
            > But they are right.

            This seems to conflict with your point that ‘to promote’ is a precatory – not a limit of power (a limit without obvious bounds).

            Securing a natural right does not require abridging others (or definitions have become corrupted).

            > I don’t think it’s limited by either one. The purpose is
            > merely precatory. It’s not a limit on the power, but an
            > explanation of why the power is granted to Congress.

            We agree on this.

            > The clause grants Congress the power to make federal law that
            > provides authors with exclusive rights to their writings for
            > some limited period of time. We call this copyright.

            That’s the modern interpretation, which I argue is incorrect. Even you have had to use ‘provides’. Why not be honest about it and use ‘grants’ and ‘privileges’?

            > But proeprty rights in body and home etc., which the states
            > already protect, is sufficient for this. What possible law
            > are you imagining by the feds that adds to this, that does
            > not grant a copyright?

            An author has a natural right to prevent others copying the writings in their private possession. This is not covered by law protecting the author against theft of their writing paper.

            An author does not have a natural right to prohibit the rest of the world from making illicit copies of their published works.

            (as Jefferson noted in pointing out amendments that explicitly granted monopolies).

            > What exactly are you talking about? Link please? Explanation?

            http://culturalliberty.org/blog/index.php?id=276
            Thomas Jefferson observed that monopolies would need explicit granting via an amendment, and so in his letter to Madison in 1789 suggested this could be achieved via the Bill of Rights Madison was producing:

            Art. 9. Monopolies may be allowed to persons for their own productions in literature and their own inventions in the arts for a term not exceeding — years but for no longer term and no other purpose.

            > This is unfair and dishonest of you.

            Unfair to state an honest suspicion?

            > I would love for you to
            > be right: for the clause NOT to authorize the coyright
            > system. Then that would be another argument against its
            > validity. Then I would not *need* my anti-monopoly arguments.
            > The only reason I oppose copyright is because it IS a
            > monopoly. If the clause did not permit a monopoly to be
            > granted, why would I be against this?

            My other honest suspicion is that, in knowing that anyone who challenges the holy consensus interpretation of the so called ‘copyright clause’ as empowering Congress to grant copyright instantly obtains near-absolute-zero credibility, you are wary of crossing that Rubicon. In other words, I daresay you’re not ready to join my “crankish” and “idiosyncratic” ‘Heliocentricity club’.

            > What does it MEAN to “secure a natural exclusive right” other
            > than protecting their physical property rights, which the
            > states were already doing? What kind of federal “securing”
            > law do you think the clause would authorize? What would it SAY??

            It would provide similar recourse to individuals who’d had their intellectual works copied by burglars or pick-pockets, as if any of their material work had been stolen. It would also recognise intellectual work as exchangeable property, i.e. author can sell novel to a potential client without them saying “Yes, it’s a very nice CD-ROM, but here, please have it back, we’re no longer interested in buying it” and the novelist complaining “But, you’ve just copied my novel off of it!” and the client retorting “Sorry, there’s no such thing as intellectual property. Goodbye.”

            It is clearly a nonsense to claim a natural
            right to prevent someone from communicating a poem that one
            has voluntarily disclosed to them, or printing it, etc. There
            is no such right and being non-existent it cannot be
            secured.

            > there is no such natural right, but there is a legal right
            > and it can be and has been secured.

            I’m glad we agree that there is no such legal right.

            However, you cannot secure a ‘right’ qua privilege that has not yet been granted (by a Congress not empowered to grant it).

            The Constitution cannot refer to privileges already granted by various states since its premise is a ‘clean slate’ legislature. Moreover, it cannot refer to future laws conceived immaculately (made without power provided by the Constitution). Indeed how can anything refer to an unknown future? So, there can be no unwritten assumption that possibly Congress/Madison might one day re-enact Queen Anne’s statute granting authors an ‘exclusive right’ to their writings, and that if such a law was made (by power assumed) the Constitution THEN empowered Congress to secure such a legally created ‘right’.

            > Are you under the naive
            > impression that the Constitution only permits laws that
            > comply with natural law? If so, you are sadly mistaken.

            No.

            The Constitution COULD have empowered Congress to grant the privilege of copyright, just as it empowered Congress to grant the privilege of Letters of Marque, so yes, it’s possible it could have explicitly empowered Congress to abridge US Citizens’ liberty, to annul their right to copy (as Jefferson’s amendment would have done), and thus taken an unethical excursion from natural law.

          • Crosbie Fitch December 1, 2011, 12:02 pm

            ERRATUM: “I’m glad we agree that there is no such legal natural right.”

          • Alexandre Oliva December 1, 2011, 12:09 pm

            Maybe the point I’m trying to make deserves elaboration.

            The constitution did not give congress power to *create* or *define* new rights for authors and inventors. It only granted it power to *secure* a *single* exclusive right (note the singular form).

            So the first question we must ask ourselves is what single exclusive right it is. I posit that it is the right to refrain from disclosing the writing or the invention. That’s the only exclusive right over works that authors had at the time the constitution was written, and that’s the only exclusive right over discoveries that inventors had at that time.

            Now, what does it mean to secure that exclusive right? It means to make sure authors and inventors are not compelled to disclose their writings and discoveries against their will. Forcing them to do so, which some states and courts might be inclined to do for whatever reason, would violate this exclusive right, so by the power granted by the constitution, congress may secure these exclusive right by passing laws that stop states from passing laws or issuing court orders that force involuntary disclosure of writings or inventions.

            Ridiculous? Only if one considers that being entitled to keep one’s secrets to oneself is ridiculous. Heck, that’s what the fifth amendment is about!

          • Stephan Kinsella December 1, 2011, 12:16 pm

            Crosbie:

            > An exclusive right for a limited
            > time to a writing–that is a
            > copyright-like monopoly.

            Only in today’s copyright corrupted vocabulary (not in the vocabulary of the Framers).

            That copyright has been described as a ‘legislatively created exclusive right’, or ‘exclusive right’ for short, doesn’t make it an author’s right – even though everyone has been brainwashed into understanding copyright as an ‘exclusive right’ precisely in order that it fits with the words used in the Constitution.

            In any case, you have to wait until at least 1790 for this ‘right’ to be brought into existence.

            so? that is irrelevant. you are just a crank here.

            > It is not a protection of physical
            > property; and your alternative is incoherent.

            Not at all. Any author or inventor instinctively recognises their natural power and right to prevent burglars obtaining access to their work and making & distributing copies, communicating or otherwise exploiting it – even if they leave behind the materials of paper & prototype.

            > The idea that
            > it is limited because of the author’s life is ridiculous.
            > This is just now how legal writing is interpreted.

            It is more ridiculous that an author’s ‘right’ can extend beyond their lifetime, let alone that it is alienable from them whilst they’re alive.

            that is ridiculous in the sense of outrageous and unjustified. Not in the sense of a ridiculous interpretation of the words. You are equivocating.

            As I said, Madison no doubt had the intention of granting copyright in mind, but that doesn’t mean it’s nonsensical for Congress to have power to secure an author’s natural right for limited times, e.g. limited to the author’s lifetime, or possibly shorter (if someone can prove they were in possession of a discovered/stolen copy of a manuscript more than 20 years prior to date say).

            >
            > Let me ask you: is this your own pet theory, or are you aware
            > of any serious scholarly work that makes this argument?
            > Someone with a sustained argument, clear and
            > non-idiosyncratic words and concepts? If so, could you point me to it?

            I’ve not come across anyone else arguing that ‘secure the exclusive right’ only empowers Congress to secure a natural right, as opposed to grant a privilege.

            Being an “Earth orbits the Sun – not vice versa” class of argument, I’m not really surprised that I’ve not come across it elsewhere.

            Just as I thought. You are a total crank on this issue.

            > Exclusive. Right. To. A. Writing. For. A. Limited. Time.

            ‘Right’ is the key word there, and I’m arguing that in conjunction with “secure” it can only mean a pre-existing natural right, not a privilege yet to be granted (or previously granted by Queen Anne).

            “can only mean”? wow, you know this how? crank alert.

            >
            >

            I have a hard enough time arguing with the
            > ‘progress clausists’ who instead believe that Congress is
            > empowered to To promote the Progress of Science and useful
            > Arts by any means necessary, i.e. abridging liberty (freedom
            > of speech), etc.

            >
            > But they are right.

            This seems to conflict with your point that ‘to promote’ is a precatory – not a limit of power (a limit without obvious bounds).

            True–I think you are misstating their view. Their view is you can secure those exclusive rights, by providing for monopolies that do abridge liberty.

            Securing a natural right does not require abridging others (or definitions have become corrupted).

            So you keep asserting. You have some private vision or revelation of how things must be.

            > I don’t think it’s limited by either one. The purpose is
            > merely precatory. It’s not a limit on the power, but an
            > explanation of why the power is granted to Congress.

            We agree on this.

            > The clause grants Congress the power to make federal law that
            > provides authors with exclusive rights to their writings for
            > some limited period of time. We call this copyright.

            That’s the modern interpretation, which I argue is incorrect.

            you don’t argue. you assert.

            Even you have had to use ‘provides’. Why not be honest about it and use ‘grants’ and ‘privileges’?

            I am honest. It is a grant of a privilege. A grant (unfortunately) authorized by the copyright clause.

            > But proeprty rights in body and home etc., which the states
            > already protect, is sufficient for this. What possible law
            > are you imagining by the feds that adds to this, that does
            > not grant a copyright?

            An author has a natural right to prevent others copying the writings in their private possession.

            No he doesn’t. First, there are problems with the concept of “natural” rights. I would call it a libertarian or individual right. BUt let that pass. The rights individuals have: is a general right to acquire property, and to be free from agression, and to do whatever one likes with one’s own property so long as they do not trespass against others. Given these rights, one is *able* to a lot of things, like publish a book, take a bath, or deny permission to others to access their house or see their writings. But you would not say you have a “natural right to take a bath”. The freedom to be able to decide to take a bath is simply a consequence of having your basic rights respected.

            This is not covered by law protecting the author against theft of their writing paper.

            You are talking in your secret, private language again. Nobody has a clue as to what you are talking about. You talk like a mystic. If the so-called “natural right to prevent others copying the writings in their private possession” is “not covered by law protecting the author against theft of their writing paper”, then what the heck is this right? Nobody konws–all we know is it’s not the same as a monopoly privilege, I guess.

            An author does not have a natural right to prohibit the rest of the world from making illicit copies of their published works.

            (as Jefferson noted in pointing out amendments that explicitly granted monopolies).

            > What exactly are you talking about? Link please? Explanation?

            http://culturalliberty.org/blog/index.php?id=276
            Thomas Jefferson observed that monopolies would need explicit granting via an amendment, and so in his letter to Madison in 1789 suggested this could be achieved via the Bill of Rights Madison was producing:

            Art. 9. Monopolies may be allowed to persons for their own productions in literature and their own inventions in the arts for a term not exceeding — years but for no longer term and no other purpose.

            I guess you don’t know how to make a coherent legal argument. You simply assert that “Thomas Jefferson observed that monopolies would need explicit granting via an amendment.” Where does he assert this? You seem to think this is *implied* by his proposed wording in his draft Art. 9. That was in a letter in August 1789, before the Constitution was even ratified (Sept. 1789). The language in his proposed Art. 9 has a number of YEARS in it (to be determined) – so it would put LIMITS on how long the monopoly grants could be. The original copyright clause left it up to congress. Had Jefferson’s proposal been passed, probably a number like 14 or 21 would have been put in there, and that would have prevented hte copyright extensions we’ve had. But you have not shown at all that Jefferson believed that the previous copyright clause did not give congress power to grant copyright monopolies. Where is your evidence of this assertion?

            Further, even if Jefferson did believe this–so what? He didn’t draft the Constitution. Madison did. And Madison, as you admit, understood the words he wrote to empower Congress to grant monopolies.

            > This is unfair and dishonest of you.

            Unfair to state an honest suspicion?

            No, it shows you are unfair for thinking it. Either that, or a conspiracy nut or idiot.

            > I would love for you to
            > be right: for the clause NOT to authorize the coyright
            > system. Then that would be another argument against its
            > validity. Then I would not *need* my anti-monopoly arguments.
            > The only reason I oppose copyright is because it IS a
            > monopoly. If the clause did not permit a monopoly to be
            > granted, why would I be against this?

            My other honest suspicion is that, in knowing that anyone who challenges the holy consensus interpretation of the so called ‘copyright clause’ as empowering Congress to grant copyright instantly obtains near-absolute-zero credibility, you are wary of crossing that Rubicon. In other words, I daresay you’re not ready to join my “crankish” and “idiosyncratic” ‘Heliocentricity club’.

            Hey, dude, I just made an argument in this very post that would be considered outlandish. I would love for your argument to have merit. If it did I would include it as a possible argument against copyright, in future writing. but it’s too silly and laughable. I mean why don’t we just argue that the Constitution itself is invalid because it was the result of a coup? (which it was)

            > What does it MEAN to “secure a natural exclusive right” other
            > than protecting their physical property rights, which the
            > states were already doing? What kind of federal “securing”
            > law do you think the clause would authorize? What would it SAY??

            It would provide similar recourse to individuals who’d had their intellectual works copied by burglars or pick-pockets, as if any of their material work had been stolen. It would also recognise intellectual work as exchangeable property, i.e. author can sell novel to a potential client without them saying “Yes, it’s a very nice CD-ROM, but here, please have it back, we’re no longer interested in buying it” and the novelist complaining “But, you’ve just copied my novel off of it!” and the client retorting “Sorry, there’s no such thing as intellectual property. Goodbye.”

            Wow, you are confused.

            However, you cannot secure a ‘right’ qua privilege that has not yet been granted (by a Congress not empowered to grant it).

            Sure you can. Congress did it. Done.

            The Constitution cannot refer to privileges already granted by various states since its premise is a ‘clean slate’ legislature. Moreover, it cannot refer to future laws conceived immaculately (made without power provided by the Constitution). Indeed how can anything refer to an unknown future? So, there can be no unwritten assumption that possibly Congress/Madison might one day re-enact Queen Anne’s statute granting authors an ‘exclusive right’ to their writings, and that if such a law was made (by power assumed) the Constitution THEN empowered Congress to secure such a legally created ‘right’.

            you are fixating like a crank on your notion of what “secure” must mean. Bad legal argument.

          • Dan December 1, 2011, 3:39 pm

            “The constitution did not give congress power to *create* or *define* new rights for authors and inventors.”

            The 9th Amendment (according to the federal courts) gives the federal government power to invent rights (like privacy and abortion):

            “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

            Stephan, with the 9th being after the 1st, would this kill our whole argument?

          • Stephan Kinsella December 1, 2011, 4:32 pm

            Dan, there is no conflict between 9th and 1st, so not sure what you mean; anyway they were ratified at the same time.

          • Dan December 1, 2011, 7:24 pm

            I know they were ratified at the same time, just suggesting that a court might say 9>1 in defense of inventing new forms of property as they did with privacy rights and abortion

          • Crosbie Fitch December 4, 2011, 5:34 am

            > so? that is irrelevant. you are just a crank here.

            I think we’ve pretty much established over the years that you’d describe me to be a crank rife with idiosyncrasy, whose arguments you find generally incoherent. However, aside from ad hominems, let us continue…

            > Just as I thought. You are a total crank on this issue.

            http://en.wikipedia.org/wiki/Argumentum_ad_populum

            That there is extreme industry, political, and peer pressure to believe that the clause empowered Congress to grant a monopoly, and thus a ‘moral’ imperative upon all to pay lip service to that belief (or forever be labelled a crank), doesn’t actually lend much weight to your argument.

            > “can only mean”? wow, you know this how? crank alert.

            Would you suggest that ‘exclusive right’ instead meant state granted monopoly?

            That’s rather a big leap.

            > True–I think you are misstating their view. Their view is
            > you can secure those exclusive rights, by providing for
            > monopolies that do abridge liberty.

            You don’t seem to be sure what ‘exclusive rights’ means? Does it mean monopolies? Or some other weird thing that you’d argue can only be secured by the grant of monopolies?

            The loose thread in the jumper of this apparent belief that I’m pulling at, which our modern, copyright polluted vocabulary has made invisible, is that an individual’s rights exist without legislation, and precede the Constitution, which is why the Constitution can recognise and refer to them, and empower Congress to secure them.

            http://en.wikipedia.org/wiki/Rights_of_Man#Arguments

            Human rights originate in Nature, thus, rights cannot be granted via political charter, because that implies that rights are legally revocable, hence, would be privileges:

            It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few… They… consequently are instruments of injustice.

            The fact, therefore, must be that the individuals, themselves, each, in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

            The Constitution cannot empower Congress to secure ‘rights’ that may be granted by some extra-governmental agency whose power is not limited by the Constitution. Something has to have power to grant Copyright and it’s not Congress – if you’d argue that Congress has power to secure copyright once it has been granted (by the CIA?).

            > So you keep asserting. You have some private vision or
            > revelation of how things must be.

            Just applying the principle of natural rights. Anyone can do it. See Paine.

            > you don’t argue. you assert.

            Well, I think there’s a lot more reasoning on my side than your petulant ‘crank’ aspersions.

            > I am honest. It is a grant of a privilege. A grant
            > (unfortunately) authorized by the copyright clause.

            So, because people want to believe it, everyone does believe it, that Congress is empowered to grant copyright, despite the clause only empowering it to secure an author’s exclusive right to their writings.

            As I point out, the Constitution makes no bones about empowering Congress to grant the privilege of Letters of Marque, so it could just as easily have empowered Congress to grant the privilege of Copyright. However, such a clause would have been politically unpalatable/untenable at the time.

            > No he doesn’t. First, there are problems with the concept of
            > “natural” rights. I would call it a libertarian or individual
            > right. BUt let that pass. The rights individuals have: is a
            > general right to acquire property, and to be free from
            > agression, and to do whatever one likes with one’s own
            > property so long as they do not trespass against others.
            > Given these rights, one is *able* to a lot of things, like
            > publish a book, take a bath, or deny permission to others to
            > access their house or see their writings. But you would not
            > say you have a “natural right to take a bath”. The freedom to
            > be able to decide to take a bath is simply a consequence of
            > having your basic rights respected.

            Liberty and every act within it is a right. Simply because all the things in one’s liberty are not separately enumerated does not mean they are not rights.

            Rights are inherently in all the inhabitants.

            Copyright annuls the right to copy from our liberty, to leave it, by exclusion, in the hands of a few.

            We do not lack a right to copy simply because it has not been enumerated as part of our liberty. Moreover, our liberty is not the resource of a government to derogate rights from as it sees fit – as if our liberty, not being our right, simply comprises those freedoms permitted to us by our generous government.

            So yes, we do have a natural right to have a bath in our own bathtub, but not to take our neighbour’s bathtub (unless it may save a life perhaps). That’s why a government could not ethically annul everyone’s right to have a bath in order to privilege and serve the business interests of owners of large ‘public’ baths.

            > You are talking in your secret, private language again.

            I think it’s English. Do you find it difficult to discern the difference between writing and the paper it’s written on?

            > Nobody has a clue as to what you are talking about. You talk
            > like a mystic. If the so-called “natural right to prevent
            > others copying the writings in their private possession” is
            > “not covered by law protecting the author against theft of
            > their writing paper”, then what the heck is this right?
            > Nobody konws–all we know is it’s not the same as a monopoly
            > privilege, I guess.

            No, a monopoly privilege annuls people’s natural right to make copies of writing in their legitimate possession (a book they’ve purchased say) without permission from the holder of the monopoly privilege (with power to do so granted by the state).

            A right means that a writer already has the natural power and right to prevent people burgling their house to make a copy of their manuscript (despite not stealing their writing paper).

            A privilege is a power that doesn’t exist until it is granted by the state.

            A right is a natural power existing in all in equal measure.

            We empower a government to secure our rights, not to grant us privileges.

            Government’s sole purpose is safeguarding the family and his/her inherent, inalienable rights

            > But you have
            > not shown at all that Jefferson believed that the previous
            > copyright clause did not give congress power to grant
            > copyright monopolies. Where is your evidence of this assertion?

            I use Jefferson’s suggestion to amend the Constitution to make explicit grant of monopolies to demonstrate that the Framers knew how to be explicit about it. However, you do have to wonder why Jefferson suggested this explicit grant and why Madison rejected it.

            > Further, even if Jefferson did believe this–so what? He
            > didn’t draft the Constitution. Madison did. And Madison, as
            > you admit, understood the words he wrote to empower Congress
            > to grant monopolies.

            Madison understood the words he wrote to empower Congress to secure an author’s exclusive right to their writings (and an inventor’s to their designs) – as did every other Framer.

            Madison may well have considered the clause sufficient to later excuse his assumed power to grant monopolies (to abridge the people’s liberty), but that doesn’t mean Congress was actually empowered to do so.

            > No, it shows you are unfair for thinking it. Either that, or
            > a conspiracy nut or idiot.

            My suspicion that you are irrationally wedded to the belief that ‘secure right’ means ‘secure right, granting any privileges as may be deemed useful’ is mild, but increases in proportion to your readiness to dismiss my points with disparaging remarks rather than counter argument.

            > Hey, dude, I just made an argument in this very post that
            > would be considered outlandish. I would love for your
            > argument to have merit. If it did I would include it as a
            > possible argument against copyright, in future writing. but
            > it’s too silly and laughable. I mean why don’t we just argue
            > that the Constitution itself is invalid because it was the
            > result of a coup? (which it was)

            I know my argument is a snowflake in hell, but that doesn’t invalidate it.

            The validity of The Constitution is another matter entirely.

            > Wow, you are confused.

            It is possible, but that’s not a very good counter-argument.

            However, you cannot secure a ‘right’ qua privilege that has not yet been granted (by a Congress not empowered to grant it).

            > Sure you can. Congress did it. Done.

            Aside from Madison’s fait accompli, the question remains whether Congress had Constitutional power to grant these monopolies, not whether it assumed it. As to whether the monopolies did much to secure authors’ & inventors’ rights, that’s debatable.

            > you are fixating like a crank on your notion of what “secure”
            > must mean. Bad legal argument.

            The Constitution was a rigorously clear and explicit limit of Congress’ power. It was not a vague & wishy-washy aspirational manifesto expected to be interpreted according to whatever meanings were most convenient to Congress.

            However, I don’t think the Framers realised that the English language could be so quickly corrupted within a few centuries such that ‘exclusive right’ came to mean ‘the monopoly of copyright’ and the conception of (natural) rights disappeared from the public’s consciousness – so much so, that we now need to prefix them with ‘natural’ to avoid confusion with ‘rights’ granted by the state, i.e. privileges.

            Paine did not need to qualify his use of right with ‘natural’. In the 18th century the language of rights had not yet been fully corrupted by corporate lawyers, those who would today inform us that copyright is a ‘bundle of rights’ – to be dished out like candy.

          • Stephan Kinsella December 4, 2011, 9:28 am

            Crosbie,

            I should have used gentler language, but your outrageous accusations of my sincerity and motives above poisoned the well.

            > “can only mean”? wow, you know this how? crank alert.

            Would you suggest that ‘exclusive right’ instead meant state granted monopoly?

            Yes.

            That’s rather a big leap.

            It’s not a leap at all. It’s the natural import of those words.

            You don’t seem to be sure what ‘exclusive rights’ means? Does it mean monopolies? Or some other weird thing that you’d argue can only be secured by the grant of monopolies?

            It can mean a variety of laws. It is a broad grant to Congress. THey have a lot of discretion as to how to use this power. See the necessary and proper clause.

            The loose thread in the jumper of this apparent belief that I’m pulling at, which our modern, copyright polluted vocabulary has made invisible, is that an individual’s rights exist without legislation, and precede the Constitution, which is why the Constitution can recognise and refer to them, and empower Congress to secure them.

            but the Constitution is not libertarian. It is not the embodiment of natural law. It is a positivist piece of centralized, statist legislation. It empowers a dangerous central state to exist and to violate individual rights. Many of the grants of power are fuzy and therefore broader than we woudl like. Many of the limits placed on those power are also ambiguous, and given that the feds themselves are structurally able to interpret these limits, they are bound to be too narrowly construed.

            You admited that Madison wrote the copyright clause to empower the granting of copyright monopolies. Why you think he wasn’t able to use the proper words, why he made a mistake, is a mystery.

            Human rights originate in Nature, thus, rights cannot be granted via political charter, because that implies that rights are legally revocable, hence, would be privileges:

            You are confusing liberatarian arguments with legal reasoning. Wishing does not make it so.

            The Constitution cannot empower Congress to secure ‘rights’ that may be granted by some extra-governmental agency whose power is not limited by the Constitution. Something has to have power to grant Copyright and it’s not Congress – if you’d argue that Congress has power to secure copyright once it has been granted (by the CIA?).

            Weak legal argument. A stretch.

            > So you keep asserting. You have some private vision or
            > revelation of how things must be.

            Just applying the principle of natural rights. Anyone can do it. See Paine.

            The Constitution does not embody natural law, unfortunately.

            So, because people want to believe it, everyone does believe it, that Congress is empowered to grant copyright, despite the clause only empowering it to secure an author’s exclusive right to their writings.

            I don’t want to believe it. I dislike it. you are putting too much on the nitpicky use of the word “secure”.

            As I point out, the Constitution makes no bones about empowering Congress to grant the privilege of Letters of Marque, so it could just as easily have empowered Congress to grant the privilege of Copyright. However, such a clause would have been politically unpalatable/untenable at the time.

            Nonsense. Madison put a clause in there with langauge sufficient to empower Congress to grant copyright.

            Copyright annuls the right to copy from our liberty, to leave it, by exclusion, in the hands of a few.

            right. that is why it is wrong.

            I use Jefferson’s suggestion to amend the Constitution to make explicit grant of monopolies to demonstrate that the Framers knew how to be explicit about it.

            He wasn’t a framer. And so waht if different formulations are possible? Further, it seems to me what Jefferson was doing was referring *to* the monopolies he knew the copyrgiht clause already permitted, and then he was trying to put a cap on how long they could be.

            However, you do have to wonder why Jefferson suggested this explicit grant and why Madison rejected it.

            Why he rejected it? Because it’s out of place in a bill of rights. Or maybe he didn’t want to fight over it. But I think the reason he suggested it was to LIMIT the length of copyright and patent term to some maximum.

            Madison understood the words he wrote to empower Congress to secure an author’s exclusive right to their writings (and an inventor’s to their designs) – as did every other Framer.

            Exactly. Which means: to give the author a monopoly–exlcusive right. a copyright.

            Madison may well have considered the clause sufficient to later excuse his assumed power to grant monopolies (to abridge the people’s liberty), but that doesn’t mean Congress was actually empowered to do so.

            Apparently it did mean that. They passed the copyrgiht act the very next year. Hmm, I wonder why no oen said “but wait that contradicts the writings clause”.

            > No, it shows you are unfair for thinking it. Either that, or
            > a conspiracy nut or idiot.

            My suspicion that you are irrationally wedded to the belief that ‘secure right’ means ‘secure right, granting any privileges as may be deemed useful’ is mild, but increases in proportion to your readiness to dismiss my points with disparaging remarks rather than counter argument.

            The belief is based on normal, standard canons of statutory and constitutional interpretation. You are free to believe I am incorrect but earlier you attributed base motives to me for being wrong. THat is what is offensive.

            I know my argument is a snowflake in hell, but that doesn’t invalidate it.

            Agree. So is my argument that the Fouteenth Amenmdnet was not properly ratified. My disagreement with you is not that your argument has no chance. It is that it is a legal stretch.

        • Dan November 30, 2011, 5:50 pm

          “As for limited times, the lifetime of the author or inventor is limited. Even so, it’s likely Madison had a state granted monopoly in mind.”

          You’re playing politics here, ignoring the first bicentennial of American history in order to promote your beliefs.

          If your statement was true from the days of Madison, then why did the Founders institute a 14-year grant which was not a form of super-property right over legitimate property in the home or business?

          The only justification for copyright as a property right is that you believe it’s economically effective or morally just and thus should replace thousands of years of thought. In other words, government regulation via majority vote is required to make the world a better place. And democracy is the opposite of guaranteed-rights libertarianism.

  • Dan November 28, 2011, 2:39 pm

    Again, everyone seems to be forgetting that the Founder’s copyright system was not a private property right, let alone one that enables seizure, breaking-and-entering, and extortion of businesses, but a 14-year grant, later extendable to an additional 14 years. And it only applied to “writers and inventors”. The closest thing to intellectual property at the time of the Founders was Crown copyright, which they opposed and perverted into a business-centered protectionist grant rather than “artist”-censored tyranny. Ayn Rand brought in the “intellectual property” garbage add sadly “free-market conservatives” accepted it as a super-property-right despite the previous 200 years of American history.

  • Crosbie Fitch November 28, 2011, 2:48 pm

    Dan, the US copyright act came AFTER the Constitution (and was simply an edited copy of the Statute of Anne).

    The question is whether the Constitution empowered Congress to enact it.

    The answer is that it did not.

  • Attorney November 28, 2011, 3:01 pm

    Crosbie, no one is saying you can shut down a printing press. That’s not the action in response to an infringement of a copyright. Rather, you sue for damages. You can print copies of Harry Potter books until the cows come home, but if you infringe J.K. Rowling’s copyrights, she’s going to take you to the cleaners.

    Also, I can’t do anything more than point you to Article I, Section 8, to tell you that you’re dead wrong as to whether Congress could pass the Copyright Act. The language couldn’t be clearer.

    • Stephan Kinsella November 28, 2011, 4:08 pm

      “Crosbie, no one is saying you can shut down a printing press. That’s not the action in response to an infringement of a copyright. Rather, you sue for damages. You can print copies of Harry Potter books until the cows come home, but if you infringe J.K. Rowling’s copyrights, she’s going to take you to the cleaners. ”

      This is just wrong, and confused. First, courts CAN and DO grant INJUNCTIONS to STOP books from being printed, such as the case with the sequel to Catcher in the Rye (See http://blog.mises.org/11600/the-patent-copyright-trademark-and-trade-secret-horror-files/ and http://www.lewrockwell.com/blog/lewrw/archives/28808.html ) . Second, even if you can only sue for damages, that is still an infringement on freedom of the press and expression since it is a penalty that is imposed on someone for publishing a book!

      Art. I, Sec. 8 was enacted in 1789. But the First Amendment came LATER, in 1791. They are incompatible, and thus, the later statute prevails.

  • Attorney November 28, 2011, 3:04 pm

    Besides, who would produce a valuable work if they couldn’t make money off of it? Who would produce valuable drugs if they couldn’t make money off of them? You have no right to the unfettered use of someone else’s ideas, and the American IP system (and the worldwide IP system) promotes the advancement of sciences and the useful arts, just as the Framers intended.

    If it wasn’t for the patent system, the Industrial Revolution might never have happened.

    • Dan November 28, 2011, 3:13 pm

      “If it wasn’t for the patent system, the Industrial Revolution might never have happened.”

      It doesn’t matter. The Constitution was specifically designed to be anti-free-market. Mainly, providing a common currency for banking interests. The only free-market justification of the Constitution is that the welfare-warfare state didn’t exist at the time.

    • Stephan Kinsella November 28, 2011, 4:08 pm

      These are just assertions. There is in fact no proof whatsoever for these contentions. Just assertions. find a single study that shows a correlation between IP and progress. http://blog.mises.org/10217/yet-another-study-finds-patents-do-not-encourage-innovation/

    • Deefburger November 30, 2011, 5:17 pm

      First of all, there is no physical substance to an idea. An idea happens ONLY in the mind, until it is made real by a physical product. When it becomes physical, then it becomes property and has value. Until then it is just a lot of hot air, in fact, it isn’t even as substantial as hot air!

      Second, it is physically impossible to prevent an idea from spreading or becoming manifest in other minds independent of each other. We all exist in the same universe, and there is no exclusive privilege to prevent the same universe from presenting the same evidence and yielding the same idea to different minds. Nothing.

      Third, and not the least, an idea MUST be shared for it to attain any value at all. So, to claim that maintaining exclusivity of ideas is the only way to secure their value goes against the physical and metaphysical facts concerning ideas.

      So, you must buck reality in order to have your idea and it’s value exclusive of all others. Hence, the mish-mash of “rights” and “grants”. Only Government could claim that what is not possible in the physical/metaphysical reality is possible by force!

  • Attorney November 28, 2011, 4:11 pm

    I’m signing off. It’s been nice chatting with you. Sadly, I fear that you’re from another planet.

  • Kyle December 8, 2011, 12:35 pm

    Yeah, copyright should be illegal like trademark should be illegal and patents should be illegal. Yep, lots of innovation and creation would be sure to happen. Yep.

    • Dan Q December 8, 2011, 12:50 pm

      Trademarks have nothing to do with copyrights or patents. A libertarian society would prosecute fraud under a judicial mechanism, and there would be no need for registration of trademarks with a government.

  • Kyle December 8, 2011, 12:36 pm

    Why don’t we just declare open season on everything. You own it, who the fuck cares. I’m gonna just take it. Now that would be a great world.

  • Robert Andersson January 8, 2012, 6:04 pm

    Has this argument ever been brought to a court in a copyright case?

    • Dan January 8, 2012, 7:14 pm

      A better question would be, “Has there ever been a case regarding the Constitution vs. the Bill of Rights?” (e.g. the 17th Amendment never officially repealed Article V)

      Either way, the Supreme Court of today is something to fear. Since Bush II, rulings has been extremely pro-business (i.e., anti-free-market and anti-freedom-of-contract but still pro-business). We never had a court like this in history.

  • Scott Dunn January 10, 2012, 1:09 pm

    Jefferson has this issue covered here.

    The relevant excerpt is here:

    Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property.

    Note that he doesn’t even think of ownership as a natural right. It’s a gift of social law. I seriously doubt that he could find a property right in writing or other creative works.

  • anon January 10, 2012, 3:08 pm

    In U.S. v. Stevens, 130 S. Ct. 1577, 1584 (2010) (citations omitted), the Supreme Court said the following:

    “From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” These “historic and traditional categories long familiar to the bar”—including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct—are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.”

    How would you argue that copyright is not such a category? The First Amendment was ratified by the states in 1791, but it was passed in 1789 by the same people who went on to enact the Copyright Act in 1790. It would be very odd for the First Congress to pass a copyright bill that they expected soon would be rendered unconstitutional. Isn’t this evidence that copyright infringement is a class of speech “the prevention and punishment of which ha[s] never been thought to raise any Constitutional problem”?

CC0
To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.