At Tactical IP, we usually find our own subject matter to write on. Occasionally, someone will find something really exciting or current to write about and offer it to someone due to write an article soon (Scott in particular very good at this. Thank you, Scott). Very, very occasionally, one of us will tweet something, which sparks a discussion, which leads to an article. This is one such article.
Recently, Mark tweeted about an article which claimed that copyright is unconstitutional. Of course, this led to a great pounding of heads upon desks and much gnashing of teeth at the office. We may not all be lawyers (I, for instance, am not a lawyer), but we all know that, not only are copyrights and patents explicitly constitutional, but that the argument made in the article is not particularly sound. So, when Mark suggested that I write a response article, I jumped on the opportunity.
Let’s start with the abridged version of the article in question (for those of us who can’t be bothered to click all the links). The author believes that the First Amendment negates the right of copyrights and patents to exist. The author also believes that infringement fines are disproportionately too high.
Now, about the constitutionality of copyrights and patents: the U. S. Constitution, Article I, Section 8, states specifically that “[t]he Congress shall have Power…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.” The First Amendment to the Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
The issue here is the freedom of speech/press part of the First Amendment. The author argues that this clause automatically negates the rights to patents and copyrights. What the author doesn’t understand is that freedom of speech and the press is not absolute by any means. For instance, you can’t shout “fire” in a crowded theatre, and treasonous/seditious speech is never protected. Want a less dangerous but equally malicious example? Slander and libel aren’t protected, either. Freedom of speech and expression is limited by the “harm principle.” That is, if the speech/expression in question would cause harm to someone other than the speaker/expressor, the speech may and should be limited. To take away copyright and patent rights in the name of “free speech” could easily be argued to be harming the creators of that intellectual property they have worked hard to protect. Protection doesn’t come cheap or easy, either; the average patent costs more than my car, and not every application gets to mature into a patent.
The author also fails to understand that intellectual property is regarded as exactly that: property. By the author’s logic, I should be able to copy his article, post it here, and giving him credit is completely optional. Granted, I would never do this, because I actually understand the concept of intellectual property, but, if I did, the first thing the author would likely accuse me of is “stealing” his article. Now, correct me if I’m wrong, but isn’t it impossible to steal something that isn’t property, in other words, owned by some entity? If we eliminate copyrights and patents, are we also going to eliminate property ownership altogether?
The problem is that author is operating on a very flawed concept of intellectual property. He sees it merely as a method of expression rather than a true product. While intellectual property can be, and often is, a method of expression, it is also property. If you were the first person to string a set of words or ideas together that had some type of useful impact on the world, you should, at the very least, be credited for it. If it’s your trade, then you most certainly should get paid for it. Heck, even hobbyists can get paid to make what they love.
As for the penalty for infringement being too high, that is another discussion for another time. I feel that particular question is more a matter of opinion than a matter of the law itself.