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Seth King and the Daily Anarchist on Intellectual Property

Seth King of The Daily Anarchist, in ?Intellectual Property And Libertarianism, does a nice job of summarizing why the legitimacy of IP has been taken for granted in libertarian circles (it’s in the Constitution), why the issue is becoming ever more important (in recent years “software and file sharing really kicked into high gear” and there’s been an at least apparent increase in obviously absurd and unjust patent and copyright infringement lawsuits), his own enlightenment on IP (influenced by some of my writing), and why a compelling case against IP needs to be informed by Austrian economics and not by leftist anti-property assumptions.

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  • Crosbie Fitch September 24, 2010, 6:57 am

    Copyright and patent aren’t privileges granted by the Constitution, nor privileges empowered by it to be granted. People just believe that they are as a matter of devout, religious faith.

    That Madison intended the clause to allow people to believe Congress was empowered to grant copyright and patent doesn’t mean the clause actually did.

    http://www.copyhype.com/2010/09/copyright-and-the-constitution/#comment-53

    Congress is empowered to GRANT such a privilege as Letters of Marque (an instrument of injustice sanctionable for use against an enemy in war), but it is empowered to SECURE those rights already existing in the possession of individuals – natural rights as we must qualify them today.

    Copyright and patent are privileges as Madison well knew, but he also knew the Constitution couldn’t empower the granting of such privileges without invalidating the thing at the outset – introducing an inherent contradiction in its mission to protect the individual’s liberty. That’s why he had to limit the clause to the securing of a right, not the granting of privileges (derogations of liberty).

    Jefferson recognised the clause was deficient, and so suggested that the explicit grant of a monopoly in literary works be added to the Bill of Rights. But of course, Madison also recognised that what could be easily added could be more easily removed – and that it would unnecessarily draw attention to the fact that the granting of a monopoly was not the securing of a natural right.

    So let us just keep on calling this clause the ‘copyright clause’ until people are blinded from the recognition that it is no such thing.

    • Stephan Kinsella September 24, 2010, 7:05 am

      Crosbie,

      Copyright and patent aren’t privileges granted by the Constitution, nor privileges empowered by it to be granted. People just believe that they are as a matter of devout, religious faith.

      You have an amazing inability to communicate clearly, and some penchant for obfuscation. Let’s be clear, as this is a simple matter. The Constitution does not “grant” copyright and patent. Rather, it authorizes Congress to enact copyright and patent laws–which Congress has done. Copyright and patent therefore are in fact granted by the federal government. Whether they are “privileges” or not depends on other considerations. I argue that they are of course privileges–state grants of monopoly that would not exist without the grant.

      That Madison intended the clause to allow people to believe Congress was empowered to grant copyright and patent doesn’t mean the clause actually did.

      Yes, the Constitution does authorize patent and copyright law.

      Congress is empowered to GRANT such a privilege as Letters of Marque (an instrument of injustice sanctionable for use against an enemy in war), but it is empowered to SECURE those rights already existing in the possession of individuals – natural rights as we must qualify them today.

      Locke and the Founders did not believe IP is a “natural” right at all. The copyright/patent clause of the Constitution did not imply that IP is a natural right. It simply authorized Congress to provide temporary monopoly privileges for utilitarian concerns.

      Copyright and patent are privileges as Madison well knew, but he also knew the Constitution couldn’t empower the granting of such privileges without invalidating the thing at the outset – introducing an inherent contradiction in its mission to protect the individual’s liberty. That’s why he had to limit the clause to the securing of a right, not the granting of privileges (derogations of liberty).

      The Constitution had slavery too, and many other “inherent contradictions.” So what? IT’s a statist document. No surprise.

      So let us just keep on calling this clause the ‘copyright clause’ until people are blinded from the recognition that it is no such thing.

      It’s called the copyright clause because it is the basis for Congress’ authority to enact the Copyright Act. Are you maintaining that the Copyright Act is actually unconstitutional? Or that it is constitutional but has a basis in something other than the so-called copyright clause?

  • Crosbie Fitch September 24, 2010, 7:35 am

    I am maintaining that both patent and copyright are unconstitutional, that they were legislated only on the unchallenged insinuation/assumption that they were Constitutional.

    The clause is intended to enable the inference that privileges may be granted, without actually going so far as to be explicit about it. A clause could not actually empower Congress to grant privileges without exhibiting pungent corruption.

    The Framers knew full well how to grant privileges because this is evidenced in the Constitution’s empowerment of the granting of Letters of Marque.

    Madison was arguing that copyright was NOT a privilege – as concurred by some in Britain (later disabused) – hence could be secured as a right.

    He then slipped in the equivalence of patent to copyright in order to slip patents in on the same basis. And yet none in Britain had ever been so corrupt as to pretend patents weren’t crown granted monopolies.

    So, some like Madison wanted privileges of copyright and patent granted, but knew the Constitution couldn’t assume power from the people to derogate from their own liberty, and no doubt recognised that any clause that was blatant about doing so would never pass unnoticed by less sympathetic Framers. That’s why the clause is expressed as the securing of a (natural) right (and authors do indeed have a natural exclusive right to their writings). If it hadn’t been so expressed it would have been struck off.

    We can assume that Framers not colluding with Madison to contrive the granting of monopolies took the clause at face value, as not empowering the granting of any privilege.

    The Constitution is not supposed to be an expression of the power Madison intended Congress to assume, but of the power The People would need Congress to have – and that is the basis upon which it was supposed to be ratified.

    You can’t justify copyright and patent as Constitutional on the basis that Madison wanted them legislated.

    • Stephan Kinsella September 24, 2010, 7:57 am

      I am maintaining that both patent and copyright are unconstitutional, that they were legislated only on the unchallenged insinuation/assumption that they were Constitutional.

      I think it’s a silly argument, akin to Schiff’s argument that income tax is not legal, and to Spooner’s tortured argument that the Constitution didn’t really permit slavery or the argument that the Bill of Rights originally limited the States. I hate the Constitution and IP law but the notion that the Copyright and Patent Acts are not authorized by the IP clause in the Constitution is risible (esp. given that the Patent Act was enacted just a couple years after the Constitution was ratified).

      Anyway, so what if you are right? The Constitution is illegitimate anyway and it really doesn’t matter whether the Constitution authorizes the patent and copyright laws: These statutes are themselves unjust, unlibertarian grants of state monopoly privilege. That is the main issue. The constitutionality of these laws is a side issue at best.

      The clause is intended to enable the inference that privileges may be granted, without actually going so far as to be explicit about it. A clause could not actually empower Congress to grant privileges without exhibiting pungent corruption.

      I cannot understand what you are trying to say here. Your first sentence is murky–you seem to be saying the clause does mean to grant power to enact copyright and patent law, but doesn’t quite succeed. And your argument for this interpretation is that otherwise there would be some kind of corruption–as if that has ever stopped them before, as if the Constitution itself is not a centralizing, criminal scheme.

      The Framers knew full well how to grant privileges because this is evidenced in the Constitution’s empowerment of the granting of Letters of Marque.

      Your argument is basically a legal one–you have a tortured, crankish notion of how to legally construe the IP clause. It is not reasonable, in my view. It is clear that by including this clause Congress does have wide power to legislate in this area. You are simply wrong, legally. Hell, Congress has even found a way to protect trademark rights in the Lanham Act even though the IP clause does not contemplate this–by relying instead on the Interstate Commerce Clause–which could also have been used as an alternative basis to justify patent and copyright even if the IP clause did not exist!

      Madison was arguing that copyright was NOT a privilege – as concurred by some in Britain (later disabused) – hence could be secured as a right.

      Jefferson and Locke did not think copyright was a natural right. What are you jabbering about? And so what if “Madison” “argued” that it was a right? Are you saying this alone would authorize Congress to legislate a copyright law? Or to protect copyright “as a right” instead of “as a privilege”? Can’t you be clear about what you are even talking about? What would such a law look like? And where would Congress get the authority to legislate on it? What clause grants them the authority to legislate to “protect rights”? Are you aware that the federal government is one of enumerated powers and may not even outlaw, say, theft and murder, even though such actions clearly violate rights?

      So, some like Madison wanted privileges of copyright and patent granted

      but you just said Madison thought copryight was a right not a privilege.

      , but knew the Constitution couldn’t assume power from the people to derogate from their own liberty,

      What? What does that even mean? and why not? The Constitution is not perfect or libertarian. It’s just a piece of meta-legislation.

      and no doubt recognised that any clause that was blatant about doing so would never pass unnoticed by less sympathetic Framers. That’s why the clause is expressed as the securing of a (natural) right (and authors do indeed have a natural exclusive right to their writings). If it hadn’t been so expressed it would have been struck off.

      Nonsense. The Founders knew there was no natural right at all, and they fully intended the IP clause to allow Congress to grant temporary monopolies in the form of copyright and patent to authors and inventors. The history of the IP clause is clear about this. The Patent Act passed just a year or two after the Constitution was ratified was not some huge surprise dude.

      We can assume that Framers not colluding with Madison to contrive the granting of monopolies took the clause at face value, as not empowering the granting of any privilege.

      NO, “we” cannot “assume” this at all. It’s at best a shaky, irrelevant, tortured, hyperlegalistic, and crankish argument. And at most it would show that the Patent an Copyright Acts are unconstitutional–so what? We already know they are immoral and unjustified, so being unconstitutional doesn’t make them worse. And even if they were constitutional it would not justify them.

      If the IP clause had been construed as you wish, what would have been its point? What kind of law could Congress have enacted that would be compatible with this? Just some crankish Crosbie-ish non-operational assertion that authors have some fuzzy natural rights to their internal thoughts?

      You can’t justify copyright and patent as Constitutional on the basis that Madison wanted them legislated.

      My argument is not that patent and copyright are unconstitutional. It’s the argument that says that even if they are constitutional, they are wrong and should be abolished.

  • Crosbie Fitch September 24, 2010, 8:41 am

    It is possible for someone such as Madison to argue that copyright is not a privilege whilst simultaneously not revealing his recognition that it is a privilege:

    “The copyright of authors has been solemnly adjudged in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors.”

    Have you ever heard of corruption? The ability to argue contrary to one’s knowledge?

    Madison wanted the monopolies, so inserted a clause he knew could later be pointed to as empowering their legislation (granting), but knew it would have to be phrased in the sense of securing a right, not the granting of a privilege. Arguing that copyright wasn’t a privilege prepared the way for its legislation to pass as if empowered by this clause. Even though, as you know, both Britain and the US soon recognised that copyright was a privilege. Madison knew full well it was a privilege, but then he knew that the Constitution couldn’t empower Congress to grant such a thing (without the Constitution losing its integrity).

    Frankly, none should be surprised that Madison hastily set about legislating a slightly altered Statute of Anne and patent act as a fait accompli before anyone got around to proposing a debate upon how the individual’s natural exclusive right to their intellectual work could best be secured. And once copyright and patent were legislated (with some lip service to how widely such monopolies were recognised to be a nuisance), who would bother querying why monopolies had been granted, or whether copyright and patent truly was legislation that secured an exclusive right rather than granted a monopoly?

    As for why it matters. It may not matter to you, but it probably matters to quite a number of people as to whether copyright and patent are constitutional rather than unconstitutional legislation.

    I am not in such a hurry to smash the state. It may be in the interest of those who are that the Constitution is shown to be far from a libertarian aspiration to protect citizens’ natural rights – hence if copyright and patent are shown to be unconstitutional this reveals the Constitution to be a lot more libertarian than people have come to assume.

    • Stephan Kinsella September 24, 2010, 9:04 am

      It is possible for someone such as Madison to argue that copyright is not a privilege whilst simultaneously not revealing his recognition that it is a privilege:

      “The copyright of authors has been solemnly adjudged in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors.”

      Have you ever heard of corruption? The ability to argue contrary to one’s knowledge?

      None of this bolsters your constitutional/legal argument at all.

      Madison wanted the monopolies, so inserted a clause he knew could later be pointed to as empowering their legislation (granting), but knew it would have to be phrased in the sense of securing a right, not the granting of a privilege.

      so what. the clause does empower the legislation; he was right.

      Arguing that copyright wasn’t a privilege prepared the way for its legislation to pass as if empowered by this clause.

      Yes, and there are laws that provide for social security and public education which were enacted based on arguments that such things are basic human rights. The arguments are wrong but they succeeded in getting bad laws enacted. Same with copyright.

      Even though, as you know, both Britain and the US soon recognised that copyright was a privilege. Madison knew full well it was a privilege, but then he knew that the Constitution couldn’t empower Congress to grant such a thing (without the Constitution losing its integrity).

      hahha, an illegal centralizing criminal conspiracy that permitted slavery, full of vague language and political compromises, worrieda bout integrity? hahahha

      Frankly, none should be surprised that Madison hastily set about legislating a slightly altered Statute of Anne and patent act as a fait accompli before anyone got around to proposing a debate upon how the individual’s natural exclusive right to their intellectual work could best be secured. And once copyright and patent were legislated (with some lip service to how widely such monopolies were recognised to be a nuisance), who would bother querying why monopolies had been granted, or whether copyright and patent truly was legislation that secured an exclusive right rather than granted a monopoly?

      Who would bother? Oh, I don’t know, maybe someone who had to pay royalties or damages to a patentee.

      You have still not explained what kind of legislation you think the clause, as “properly” construed, would have authorized. What would it mean for the law to “secure an exclusive right” if it does not actually grant something like a copyright or patent?

      As for why it matters. It may not matter to you, but it probably matters to quite a number of people as to whether copyright and patent are constitutional rather than unconstitutional legislation.

      Sure, it would “matter” in that if it were a good argument, and it if were accepted, then it could be used to overturn current patent and copyright law. But that is unlikely as you know. Therefore, it does not matter.

      I am not in such a hurry to smash the state. It may be in the interest of those who are that the Constitution is shown to be far from a libertarian aspiration to protect citizens’ natural rights – hence if copyright and patent are shown to be unconstitutional this reveals the Constitution to be a lot more libertarian than people have come to assume.

      My concern is with the justice of the current law. It is unjust. The other stuff is of secondary concern. As for whether you are not in a hurry to smash the state–your own personal interest and pace does not justify the state.

      • Crosbie Fitch September 24, 2010, 9:25 am

        You may recognise corruption in other respects of the Constitution’s interpretation. I’ll leave others to concern themselves with those.

        However, if you are concerned to abolish the instruments of injustice that copyright and patent are, I suggest this may be facilitated sooner if they are demonstrated to be unconstitutional than if you wait until there is a more fundamental disillusionment.

        I suspect that if it is human nature to subjugate oneself to an almighty god (and church via), it may also be human nature to empower a paternalistic government – and the best to hope for is that its power is limited to the protection of human rights – and that continuous vigilance and remedy of inevitable deviation is maintained.

        • Stephan Kinsella September 24, 2010, 10:59 am

          “However, if you are concerned to abolish the instruments of injustice that copyright and patent are, I suggest this may be facilitated sooner if they are demonstrated to be unconstitutional than if you wait until there is a more fundamental disillusionment.”

          ONly if the argument is sound, and not just dishonest puffing.

  • Crosbie Fitch September 24, 2010, 8:56 am

    As to law that secured an individual’s (natural) exclusive right to their intellectual work, this would be most similar to law prohibiting burglary and theft of material works, except it would prohibit the unauthorised access to, and communication (including copying) of such.

    That which an individual is naturally able to exclude others from, they have a natural exclusive right to. If I can naturally exclude you from copying my diary or draft manuscript to a novel, then law should secure this right, just as much as it secures my right to exclude you from my material possessions.

    A monopoly over reproduction of my published works (those I have sold or given to others, to which I therefore have no natural exclusive right) is neither natural nor a securing of my right, but a derogation of my liberty and everyone else’s. This is because an author, through copyright, loses his right to communicate and copy his own words – though may retain possession of the privilege to do so instead of transferring this to a publisher (save works for hire, of which his right to copy is alienated from him immediately).

  • Stephan Kinsella September 24, 2010, 11:01 am

    “As to law that secured an individual’s (natural) exclusive right to their intellectual work, this would be most similar to law prohibiting burglary and theft of material works, except it would prohibit the unauthorised access to, and communication (including copying) of such.”

    I.e., it would be like a combination of trespass law, the original “common law copyright” idea (which prevented someone who stole an unpublished manuscript from publishing it), and trade secret. Yawn. Ie., you are basically admitting your monomaniacal obsession with saying IP exists, is nothing more than to say that we have a property right in our bodies. IP is justa by-product or consequence, as Benjamin Tucker noted (“Tucker refined Tak Kak’s second point. In distinguishing between an idea within your mind (private) and an idea that had been communicated (public), Tucker claimed that the ownership of a private idea did not result from originating it. The ownership resulted from the fact that the idea was protected by other rights. You owned an idea in your mind simply because it was impossible for anyone to access it without your consent unless they used force, such as torture. Thus, the “ownership” of private ideas was merely a byproduct of self-ownership.”)

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