One of my favorite podcasts, KERA’s “Think,” hosted by the excellent interviewer Kris Boyd, had a fascinating show recently, Beethoven and the World in 1824:

What environment spawned one of the greatest orchestral compositions in history? We’ll find out this hour with music historian and New York Philharmonic Leonard Bernstein Scholar-In-Residence Harvey Sachs. His latest book is “The Ninth: Beethoven and the World in 1824? (Random House, Paperback, 2011).

As Sachs notes, the final movement of his famous Symphony No. 9 in D minor, Op. 125, “Ode to Joy,” was innovative:

The symphony was the first example of a major composer using voices in a symphony (thus making it a choral symphony). The words are sung during the final movement by four vocal soloists and a chorus. They were taken from the “Ode to Joy“, a poem written by Friedrich Schiller in 1785 and revised in 1803, with additions made by the composer.

In other words, it was a remix, as most (all?) art is. In today’s hyper-copyright world, Schiller could stop Beethoven if he wanted, and prevented one of the greatest works of art of all time.

[TLS]

Interesting post by Glyn Moody at ComputerWorld UK: Patent Scandal of Laws Made Behind Closed Doors. This is about how IP laws like the ACTA treaty and its adoption/implementation in the UK and Europe, and a new unitary EU patent, are negotiated in secret, without normal democratic/legislative debate.

As discussed on Tech News Today #377, the European Commission has decided to open an investigation into the patent wars  between Apple and Samsung.¹ According to EU Competition Commissioner Joaquin Almunia, “Apple and Samsung is only one case where IP rights can be used as an instrument to restrict competition.”²

Since patents are aimed at limiting “unbridled competition” of a free market,³ this should come as no surprise. As I have discussed elsewhere,⁴ the state is schizophrenic. It grants monopolies aimed at limiting competition (patents and copyright), and then penalizes companies for using (“abusing”) them, in contravention of state antitrust law–so that there is a “tension” between these state laws. Here’s an idea: get rid of both antitrust and patent law.

[TLS]

1. For more on the smartphone patent wars, see Samsung, Apple continue patent dispute; Apple accuses Motorola, Samsung of monopolizing markets with patents–or, you’ve got to be kidding me; We Hope Apple Wins the Patent Wars; Android Patent Trouble Worsens: Motorola Considers Collecting IP Royalties; Apple vs. Microsoft: Which Benefits more from Intellectual Property?. [↩]
2. EU: Apple-Samsung row could be stifling competition; EU Injects Itself Into Apple-Samsung Patent War. [↩]
3. Intellectual Property Advocates Hate Competition; also IP Rights as Monopolistic Grants to Overcome the Public Goods Problem. [↩]
4. See State Antitrust (anti-monopoly) law versus state IP (pro-monopoly) law and The Schizo Feds: Patent Monopolies and the FTC; see also When Antitrust and Patents Collide (Rambus v. FTC); Antitrust vs. Trademark Law; Price Controls, Antitrust, and Patents; IP vs. Antitrust; The Schizophrenic State; Intel v. AMD: More patent and antitrust waste. [↩]

[From my Webnote series]

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:

https://t.co/eUGpulpIhy ““The court’s disgorgement order, which directs that defendants pay nearly half a billion dollars to the State of New York, is an excessive fine that violates the Eighth Amendment of the United States Constitution,” Justice Peter Moulton wrote in one of…

— Stephan Kinsella (@NSKinsella) August 21, 2025

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: Eric R. Claeys, “Claim Communication in Intellectual Property: A Comment on Right on Time,” 100 B.U. L. Rev. Online 4 (2020): From ChatGPT:

Eric Claeys’s paper indirectly supports the argument that intellectual property (IP) law can hamper free speech, though that is not its main focus or framing. …

While Claeys does not explicitly frame his argument as a free speech critique, his concerns about:

• overly broad or uncertain patent rights (especially after administrative reexamination procedures),

• doctrines like “undue hardship” undermining injunctive relief,

• and “patent trolls” threatening predictable IP boundaries

…all suggest that when IP law fails to provide clear boundaries, it may chill legitimate uses—including speech.

For example:

• If someone doesn’t know whether a use of a work or invention infringes on a right (due to vague or uncertain IP claims), they may self-censor or refrain from using or discussing it.

• Overbroad enforcement (like excessive injunctions or unpredictable reexaminations) may deter not just competitors but also commentary, parody, or criticism, especially in copyright.

Thus, Claeys supports a legal architecture that reduces these speech-restricting effects—not by abolishing IP, but by clarifying and rationalizing its contours.

Conclusion:

Claeys’s paper does not argue explicitly that IP hampers free speech, but it supports a framework (claim communication, legal clarity, opposition to vague or arbitrary enforcement) that aligns with protecting expressive freedom against the overreach of IP law.

Update: See also Dotan Oliar, “Making Sense of the Intellectual Property Clause: Promotion of Progress as a Limitation on Congress’s Intellectual Property Power” [2], 94 Georgetown Law Journal, 1771–1845 (2006): According to ChatGPT: “the “Progress Clause” of the U.S. Constitution is a real, enforceable limitation on Congress’s power to grant copyrights and patents, not just a nonbinding preamble. … Oliar makes and supports a clear argument that the Intellectual Property Clause does limit Congress’s IP powers: Congress can only grant copyrights and patents if doing so promotes the progress of science and useful arts. The paper strongly rebuts the view that this language is a meaningless preamble.”

Abstract: The Article elucidates the Intellectual Property Clause by studying the neglected record from the Constitutional Convention of 1787 pertaining to it. This record consists of proposals by James Madison and Charles Pinckney for congressional power to grant patents, copyrights, and encouragements (bounties), and to establish universities. By tracking the textual transition from the initial proposals to the eventual text of the Clause and by putting this transition in its contemporaneous context, this Article makes two major contributions to our understanding of the Clause.

First, the Article takes a stand in a current controversy by providing three direct indications that the Framers intended the first part of the Clause—“to promote the progress of science and useful arts”—to be a limitation on Congress’s intellectual property power. It thus refutes a widely held belief that the Framers intended this language as a non-binding preamble. Second, the analysis solves a current puzzlement among courts and commentators about the enigmatic ends/means structure of the Clause. It shows that the Clause’s unique text reflects the Framers’ intent to have each of the Clause’s parts participate in defining and limiting the power it confers.

The Article reviews the applications of its findings for originalism, for different readings of the Clause, and for recent (e.g., Eldred v. Ashcroft) and pending (e.g., Kahle v. Gonzales, Golan v. Gonzales) constitutional intellectual property litigation. It ends by suggesting ways in which the legal community can move toward forming a concept of progress as a constitutional limitation.

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-.].

1. 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). [↩]
2. 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”. [↩]
3. 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. [↩]
4. 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?”. [↩]
5. See my article Supreme Confusion, Or, A Libertarian Defense of Affirmative Action; also Libertarian Centralists. [↩]
6. See The Patent, Copyright, Trademark, and Trade Secret Horror Files. [↩]
7. 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. [↩]
8. See also Eighth Amendment and copyright trolls; Mike Masnick’s Techdirt post Do The Statutory Damages Rates For Copyright Infringement Violate The Eighth Amendment?. [↩]
9. 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. [↩]
10. See John Hasnas, The Myth of the Rule of Law; also, my “Legislation and Law in a Free Society.” [↩]
11. See my post Higher Law. [↩]
12. 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?”. [↩]
13. Thomas Jefferson to Isaac McPherson, 13 August 1813. [↩]

The looming threat of Internet censorship in the name of copyright is being opposed by an increasing number of groups, politicians, and companies. Ron Paul and others, for example, oppose it, although supporting the goal of stopping rogue websites and copyright “piracy.”¹

As for companies, Dyn, for example, an Internet infrastructure/DNS/email delivery comany, has a strong statement opposing the horrible Stop Online Piracy Act/E-PARASITE (which emerged after the defeat of PROTECT-IP, aka “son of COICA” as it rose from the ashes of the defeated COICA) pending legislation that Big Media are trying to usher through Congress.² Unfortunately, they also, like the politicians who are coming out against SOPA, water down their opposition by paying obeisance to the legitimacy of the statist protectionism known as copyright, by including the comment: “While online piracy is obviously bad …” However, the rest of Dyn’s statement is very good. A few excerpts are included below.

And as noted above, other groups and companies are coming out against SOPA, including the European Parliament and “more than 60 civil and human rights organizations”. Even the the Business Software Alliance, which represents IT companies including Microsoft, SAP, IBM, Dell and Hewlett-Packard, and which originally supported SOPA, has withdrawn its support for SOPA in its current form.³

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”⁴ –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).⁵

Here are some excerpts from Dyn’s statement: [continue reading…]

1. SOPA Becoming An Election Issue: Challengers Highlighting Reps Who Want To Censor The Internet; Ron Paul Comes Out Against SOPA; Joins Other Elected Officials Saying No To The Great Firewall Of America. [↩]
2. See Die, SOPA, Die. [↩]
3. Business Software Alliance Withdraws Support for Stop Online Piracy Act; SOPA Needs Work to Address Innovation Considerations. [↩]
4. 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”. And A Free Speech Theory of Copyright, by 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?” [↩]
5. 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. [↩]

From FindLaw: RIAA Demands ReDigi Stop Selling Used Digital Music:

So, let’s get this straight: you have the right to sell your copy of a song that you buy. But not a copy of the copy. And since the only way to transfer a copy of a song is by … copying it, you don’t have the right to do what you have the right to do. This is what happens when rights are defined by positive law. Then there is no guarantee that they are coherent or compatible. Or just.

From The Register: Chaos feared after Unix time-zone database is nuked: Developer sued for copyright infringement:

The internet’s authoritative source for time-zone data has been shut down after the volunteer programmer who maintained it was sued for copyright infringement by a maker of astrology software.

David Olson, custodian of the Time Zone and Daylight Saving Time Database, said on Thursday he was retiring the FTP server he’s long maintained. Also known as the Olson database, it’s the official reference Unix machines use to set clocks to local time and is used
by countless websites and applications to reconcile time differences across the world.

(h/t Joris De Donder)

From Techdirt, regarding the horrible Stop Online Piracy Act/E-PARASITE (which emerged after the defeat of PROTECT-IP, aka “son of COICA” as it rose from the ashes of the defeated COICA) pending legislation that Big Media are trying to usher through Congress:

• Hackers, ACLU, Consumer Rights Groups, Human Rights Groups, Many More All Come Out Against SOPA
• Ron Paul Comes Out Against SOPA; Joins Other Elected Officials Saying No To The Great Firewall Of America
• SOPA Gives Me Powers That I Don’t Want
• Canadians Realizing That Their Websites Will Get Swept Up By SOPA Censorship
• SOPA/PROTECT IP Would Be Hideously Bad For Video Gamers
• SOPA Will Have Grave Effects On The Health Of Hundreds Of Thousands Of Americans
• SOPA And Its Broad Regulation Of VPNs, Proxies And Other Important Tools
• New Study Shows Majority Of Americans Against SOPA; Believe Extreme Copyright Enforcement Is Unreasonable
• VP Joe Biden Explains Why SOPA & PROTECT IP Are Anti-American & A Bad Idea
• Facebook, Twitter, eBay & Other Big Internet Companies Come Out Against SOPA
• Viacom: Pass SOPA Or Spongebob Dies
• Over 100 Lawyers, Law Professors & Practitioners Come Out Against SOPA

I noted in How to keep orphaned books orphans the idiotic work of the Authors Guild to try to stop universities from providing access to orphaned works, in the name of “copyright” belonging to some unknown owners. Now they are opposing Amazon’s creative “Kindle lending library.” In this program, those with Kindle hardware and an Amazon Prime subscription can download one free book to read each month. Each time a customer downloads a book in this way, Amazon pays the wholesale price to the publisher. In other words, Amazon buys the book for its customer. And the Authors Guild still doesn’t like it. These IPidiots are become self-parodies.

(h/t Geoff Plauche)

Read more>>

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Update here.

As I noted in a previous post, the 3^rd Adam Smith Forum was held earlier this month (Nov. 12, 2011) in Moscow. This event was organized by the Center for the Philosophy of Freedom, the Libertarian Party of Russia, and others. The Chairman of the ASF Steering Committee was economist Pavel Usanov, head of the Hayek Institute for Economy and Law, and Andrey Shal’nev, head of the federal committee of the Libertarian Party of Russia, was its co-chairman. I was invited to speak but could not attend in person, so my 47-minute speech “Why Intellectual Property is not Genuine Property” was presented remotely, with Russian subtitles. It is below, along with the original version and the English transcript plus the Russian translation, which was prepared by Maxim Tulenin, head of the Moscow branch of the Libertarian Party of Russia. Pictures from the event are here. The program with the list of speakers and topics is here (English translation).

Tulenin told me after the event:

I’m head of the Moscow branch of the Libertarian Party of Russia and I did the translation of your very consistent and convincing video lecture into Russian. Let me thank you, on behalf of the steering committee, Andrey Shal’nev and the participants for your contribution to the Forum, it was a great success with the audience, especially with the younger generation. I also tip my hat to you for the analytic case you’ve made against “intellectual property” because it has provided me with a pattern of argumentation suitable for my own Internet debates.

One of the participants in the Forum provided a brief overview of my talk (rough English translation). The Forum’s promo video excerpt, with Russian subtitles, is below, followed by the subtitled version presented at the Forum; the original version of my speech (without subtitles) follows these. The audio file is here. The English transcript is below, as is the Russian translation which was used for subtitles for the version presented at the Forum. The powerpoint presentation I used is also streamed below.

Stephan Kinsella speech at IIIrd Adam Smith Forum from ivangoe on Vimeo.

[continue reading…]

Glyn Moody has an excellent post up on Techdirst, Misleading Metaphors That Drive The War On Online Sharing (see below). He discusses the confusion arising for misuse of metaphors like “stealing” when applied to ideas and other non-scarce things. I’ve noted this general problem before–see my post On the Danger of Metaphors in Scientific Discourse, and Hume on Intellectual Property and the Problematic “Labor” Metaphor; also Intellectual Property and Economic Development (my Mises U 2011 lecture); Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors; Locke, Smith, Marx and the Labor Theory of Value.

Here’s Moody’s post:

Misleading Metaphors That Drive The War On Online Sharing

from the words-words-words dept

Certain terms crop up time and again in the arguments around copyright infringement and file sharing. Words like “theft” and “stealing” clearly represent an attempt to frame the debate in a certain way. That’s hardly a new insight: many posts on Techdirt have pointed out these attempts to manipulate the discourse.

But until now, no one has stepped back and looked at this phenomenon as whole, placing it in a historical and legal context, or tried to analyze how it is related to the battles for the future shape of the Internet currently taking place. That’s just what Stefan Larsson has done for his doctorate at Lund University in Sweden, in a thesis entitled “Metaphors and Norms – Understanding Copyright Law in a Digital Society” (available as a PDF.)

Here’s how the accompanying press release (yes, even theses have them these days) explains the central question it seeks to answer:

What is it about copyright that doesn’t work in the digital society? Why do millions of people think it’s OK to break the law when it comes to file sharing in particular? Sociology of law researcher Stefan Larsson from Lund University believes that legal metaphors and old-fashioned mindsets contribute to the confusion and widening gaps between legislation and the prevailing norms.

Our language is made up of metaphors, even in our legal texts. Stefan Larsson has studied what consequences this has when digital phenomena, such as file sharing and downloading, are limited by descriptions intended for an analogue world.

In other words, the problem arises when we transpose concepts from an analog context into a digital one, where those concepts are used as metaphors that fail to work because of key differences between the two worlds.

One of those metaphors is “theft”:

“When legal arguments equate file sharing with theft of physical objects, it sometimes becomes problematic”, says Stefan Larsson, who doesn’t think it is possible to equate an illegal download with theft of a physical object, as has been done in the case against The Pirate Bay.

Using the compensation model employed in the case against The Pirate Bay, the total value of such a site could be calculated at over SEK 600 billion. This is almost as much as Sweden’s national budget, says Stefan Larsson.

Another is “copy”:

In Stefan Larsson’s view, the word ‘copies’ is a hidden legal metaphor that causes problematic ideas in the digital society. For example, copyright does not take into account that a download does not result in the owner losing his or her own copy. Neither is it possible to equate number of downloads with lost income for the copyright holder, since it is likely that people download a lot more than they would purchase in a shop.

Both of those will be familiar terrain to Techdirt readers. But Larsson believes that these misleading metaphors have something in common:

“The problem is that these metaphors make us equate copyright with ownership of physical property”, says Stefan Larsson.

That is, the very idea of “intellectual property” is a metaphor that encourages people to make critical mistakes about what we can do with it, and what the ethical framework governing it should be. I certainly agree with that analysis – it’s why I prefer to call copyright and patents what they are: time-limited, government-backed intellectual monopolies. But maybe that’s just another metaphor….

From Prometheus Review:

[Update: see also KOL207 | Patent, Copyright, and Trademark Are Not About Plagiarism, Theft, Fraud, or Contract]

So it looks like a recently published spy thriller, Assassin of Secrets, was largely plagiarized by the “author” from quite a few other novels — some post-Fleming Bond novels and others.

Now, when someone like myself says he is against intellectual “property,” as an illegitimate government grant of monopoly privilege over something that cannot be owned (i.e., ideas), the responses are fairly predictable.

A common one is “Well, then what’s to stop me from copying your novel, changing the name on it, and selling it as my own?”

Well, your customers could sue you for fraud, for one thing. No need for copyright to make that possible.

For another, in the Internet age, you run a very high risk of being found out and ruining your reputation.

In this case, fans of James Bond novels discovered the plagiarism first. As you can imagine, fans can be mighty protective of their favorite books and authors. Try to rip one off and some fan is bound to spot it, and soon they’ll all be royally pissed.

[Keep reading…]