My comments from a discussion about this issue with some friends:
Why are all these scholars bad or confused on this issue? Well, virtually no one has a coherent or principled approach to this. No one wants abolition, so they are not looking for the root cause. They just want to talk on the edges and talk about reform. No one wants to challenge the labor mistake that they all seem to share.1 Especially the utilitarian types who think in terms of incentives; for them, you have to reward effort—i.e. “labor.” So they won’t challenge Locke in that regard.
I mean look at the scholarly stuff I have collected in this very post. Not only the Supreme Court, but many legal scholars recognize that copyright infringes freedom of the press as protected by the First Amendment. Yet none of them see the inherent evil of copyright law, so they want to support both. So they struggle to find ways to “balance” this “tension” and make them both work. If they would just realize how horrible copyright is, then they would not have to find tortured, contorted arguments to try to have both. they would simply say: yes, they are incompatible; and if we have to choose between the First amendment and copyright, copyright has to fall because (a) freedom of the press is more important! and (b) the First amendment came later so it basically overruled copyright. But, unfortunately, they have no clear principles so they see both as legitimate, and thus try to find a way to square the circle. Their analysis will never be right so long as they view IP as necessary and legitimate.
Update: See my podcast episode KOL067 | Patent and Copyright are Unconstitutional!. Also see Michael H Davis, “Extending Copyright and the Constitution: “Have I Stayed Too Long,”” 52 Florida L. Rev. 989 (2000), arguing that the Sonny Bono Copyright Term Extension Act is unconstitutional.
[Update: See also Melville B. Nimmer, “Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press,” 17 UCLA L. Rev. 1180 (1969-1970); Garfield, Alan E. (2007) “The Case for First Amendment Limits on Copyright Law,” Hofstra Law Review: Vol. 35 : Iss. 3 , Article 8; Lawrence Lessig, Copyright’s First Amendment, 48 UCLA Law Review 1057 (2001); Edmund T. Wang, “The Line Between Copyright and the First Amendment and Why its Vagueness May Further Free Speech Interests,” J. Constitutional Law (June 2011).]
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 “tension” between 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”2 —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).3
See also Louisiana Civil Code, Art. 8:
Art.8. Repeal of laws
Laws are repealed, either entirely or partially, by other laws. A repeal may be express or implied. It is express when it is literally declared by a subsequent law. It is implied when the new law contains provisions that are contrary to, or irreconcilable with, those of the former law. The repeal of a repealing law does not revive the first law.
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.4 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.5 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.6 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 “tension” between 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.7
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).8
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 notes 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 L. Rev. 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.9
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.”10 Given this, there is nothing wrong with interpreting ambiguous provisions in favor of liberty and justice.11 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.12 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.
Update: An argument by the court as to why software patents also limit free speech: Here’s Why Software Patents Are in Peril After the Intellectual Ventures Ruling, Fortune, Oct. 3 2016:
Pointing out that intellectual property monopolies can limit free speech, Mayer notes that copyright law has built-in First Amendment protections such as “fair use” and that patent law must include similar safeguards. He suggests that the safeguard comes in the form of a part of the Patent Act, known as “Section 101,” which says some things—including abstract ideas—simply can’t be patented in the first place.
Citing briefs from the American Civil Liberties Union and the Electronic Frontier Foundation, Meyer writes:
“As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion.” […] A robust application of section 101 at the outset of litigation will ensure that the essential channels of online communication remain “free to all men and reserved exclusively to none.” Most of the First Amendment concerns associated with patent protection could be avoided if this court were willing to acknowledge that Alice sounded the death knell for software patents.
He adds that, because software is basically a form of language, its intellectual property protection should be limited to copyright—which covers things like musics and books—rather than patents.
Update: Dale A. Nance, “Foreword: Owning Ideas,” Harv. J. L. & Pub. Pol’y 13, no. 3 (Summer 1990): 757–74, p. 762 n.26 (emphasis added):
One sense of “justification” not addressed overtly in this passage13 concerns the issue of constitutional authority. Jefferson was not silent on this matter; indeed, he had earlier proposed an amendment that could have nullified the constitutional grant of authority to the federal government to issue patents and copyrights. Jefferson, Letter to James Madison, Paris, July 31, 1788 …. Although Jefferson failed in his efforts to include an explicit and general prohibition of government granted monopolies in the Bill of Rights, there remains the issue of the extent to which the guarantees of the various constitutional amendments override or constrain the explicit grant of federal power. These matters are not addressed in this Symposium. See generally Goldstein, Copyright and the First Amendment, 70 Colum. L. Rev. 983 (1970); Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 U.C.L.A. L. Rev. 1180 (1970); Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 Calif. L. Rev. 283 (1979); Patterson, [Free Speech, Copyright, and Fair Use, Vand. L. Rev. 40, no. 1 (1987): 1-.].
See also Blake Covington Norvell, “The Modern First Amendment and Copyright Law,” Southern California Interdisciplinary Law Journal (2009): 547–88.
- See KOL037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory; also; Hoppe on Property Rights in Physical Integrity vs Value, discussing International News Service v. Associated Press, 248 U.S. 215, 246 (1918), where the Supreme Court recognized a quasi-property right in the fruits of one’s labor, what is sometimes called the “sweat of the brow” doctrine (a doctrine later rejected in the copyright context in Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991). [↩]
- 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”. [↩]
- 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. [↩]
- 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?”. [↩]
- See my article Supreme Confusion, Or, A Libertarian Defense of Affirmative Action; also Libertarian Centralists. [↩]
- See The Patent, Copyright, Trademark, and Trade Secret Horror Files. [↩]
- The Overwhelming Empirical Case Against Patent and Copyright; There’s No Such Thing as a Free Patent; Costs of the Patent System Revisited; Masnick on the Horrible PROTECT IP Act: The Coming IPolice State; Copyright and the End of Internet Freedom. [↩]
- See also Eighth Amendment and copyright trolls; Mike Masnick’s Techdirt post Do The Statutory Damages Rates For Copyright Infringement Violate The Eighth Amendment?. [↩]
- See my post Thomas Jefferson’s Proposal to Limit the Length of Patent and Copyright in the Bill of Rights. Even earlier, as noted below, Jefferson proposed eliminating the patent and copyright clauses altogether; see Jefferson, Letter to James Madison, Paris, July 31, 1788. [↩]
- See John Hasnas, The Myth of the Rule of Law; also, my “Legislation and Law in a Free Society.” [↩]
- See my post Higher Law. [↩]
- 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?”. [↩]
- Thomas Jefferson to Isaac McPherson, 13 August 1813. [↩]