Friday, January 13, 2012

What everyone in the SOPA debate is missing

Underlying the debate about the so-called Stop Online Piracy Act (SOPA) is the unstated assumption that intellectual property rights have the same legal standing as other property rights. They don't, and the tacit concession of this point by opponents of SOPA is significantly weakening their position. The foundation of intellectual property (patents and copyrights) in the United States is this clause in Article 2 of the Constitution:

The 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.

This clause clearly establishes intellectual property as a granted right, not a recognized or fundamental right, that is, the "right" to "intellectual property" does not exist unless explicitly granted by Congress at its discretion. Furthermore, Congress is constrained to grant this right only in service of a specific purpose. namely, to promote the Progress of Science and useful Arts, and only "for limited times".

Notwithstanding that the Supreme Court has effectively eviscerated the "limited time" constraint in the case of copyright, "intellectual property" is clearly on a different legal footing from the "inalienable rights" to "life, liberty and the pursuit of happiness" to which people are endowed by their Creator, as recognized in the declaration of Independence. Neither the Declaration nor the Constitution mentions "property" by name [correction: the 5th amendment does mention it. See the comments.], but it is quite clear that the right to physical property was universally considered an inalienable fundamental right by the Founders. To cite but one of many examples, the state of Rhode Island attached a signing statement to its ratification of the Constitution that reads in part:

We, the delegates of the people of the state of Rhode Island and Providence Plantations... do declare and make known,—

I. That there are certain natural rights of which men, when they form a social compact, cannot deprive or divest their posterity,—among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property...

Rhode Island's signing statement is significant because it is quite lengthy. It contains 18 separate clauses explicitly recognizing a long list of fundamental rights. (It's actually worth reading in its entirety). It is reasonable to suppose that if Rhode Island took issue with the clear implication of the Constitution that "intellectual property" is not a fundamental right, they would have said so.

The arguments against SOPA are mainly based on the collateral damage that would accrue by giving content "owners" the power to indiscriminately shut down web sites without due process. But this argument tacitly concedes a much more fundamental point, which is that a grant of copyright is not a right but a privilege granted at the discretion of the People for a particular purpose. It is far from clear that the Constitutional requirement that exclusivity be granted "To promote the Progress of Science and useful Arts" is being met.

Political arguments are often lost before they even start because one side allows the other to frame the debate. The clearest example of this is the tacit acceptance of the terms "pro abortion" and "anti abortion" in the debate on reproductive rights. In this case, the tacit acceptance of the term "intellectual property rights" concedes the fight before it starts. If there are intellectual property rights, then the debate can only be about the extent to which the state should go in order to defend those rights. But, as I have shown above, there is no legal basis for intellectual property "rights", only intellectual property "grants" (for limited times and for a specific purpose). I hope it's clear how this reframing would change the tenor of the debate.

[UPDATE:] OK, so not everyone has missed this :-)

[UPDATE2]: Wow, things are changing fast: "In an incredible turn of events, six Republican Senators have asked Majority Leader Harry Reid not to hold a vote on PIPA, the Senate version of SOPA...."

[UPDATE3]: Someone who goes by the handle Nirvana over on Hacker News makes a really excellent point in the context of conceding too much by adopting the wrong terminology:

...the Bill of Rights was enacted "in order to prevent misconstruction or abuse of its powers". This is referring to the limited powers granted to the government in the constitution. Notice, the preamble doesn't say "in order to grant rights...". The bill of rights contains "further declaratory and restrictive clauses".

Thus, these clauses are not designed to create or grant rights, but are of a "declaratory and restrictive" nature.

The constitution does not create any rights. There is no such thing, in the american form of government, as "constitutional rights". [Emphasis added.] People often use this phrase when referring to the Bill of Rights, but it is imprecise, because the Bill of Rights doesn't grant rights. IT doesn't say "the people shall have the right of free speech", instead it says "Congress shall make no law ... abridging the freedom of speech, or of the press;"

The right of free speech, as recognized by the First Amendment, precedes and predates the constitution.


Anonymous said...

That would be a cute argument if we thought about it like that. But as you should very well know, rights are nothing but duties.

The right to own property = the duty not to steal (for persons, orgs and the state).
The right to life, liberty and the pursuit of happiness = the duty not to interfere with others attempts at same.

As these 2 statements indicate, a "right" is 1% a right and 99% a duty. In practice even the richest individual in America does own 0.1% of the wealth, so the duty not to steal covers much more than the right for property.

Just because a statement refers to a duty, like the constitutional statement you refer to, instead of a right, does not make it fundamentally different.

Ron said...

Whatever perspective you choose to view the right/duty necker cube, the difference is that physical property is recognized as a right/duty that exists independent of (and antecedent to) Congress and the Constitution, whereas intellectual "property" exists only because Congress has a Constitutionally enumerated power (though not the obligation) to create it.

I Don't Believe in Imaginary Property said...

That's why I invented the term "imaginary property" and encourage people to use it. I call it that because the items so labeled are both the product of the imagination and they are only imagined to be property. Moreover, imaginary property rights are fundamentally opposed to real property rights, so it seems only fitting to have a term which conveys the fact that they are opposites.

I know that some object to that term for lumping together patents, trademarks and copyrights, but the term "imaginary property" succinctly conveys my views on the matter. There's only so much I can pack into two words, after all, and I think I squeezed quite a lot into those two. I mean, it's not as though the term "IP" is going away any time soon, any more than copyright will. Therefore, just as the GPL inverted copyright, I see no reason not to invert that term in order to put it to better uses.

Mark Holmquist said...

"neither....mentions property by name...."

Lies! The 5th amendment, more specifically the part known as the Due Process clause says "No person....shall be deprived of life, liberty, or property, without due process of law." That liberty has been extended not only to criminal cases, but also cases of commercial regulation where Congress did not provide due process of law.

Read the Constitution, it's very interesting!

Ron said...

> Lies!

Oh, give me a break. I was grepping through the text of the original Constitution sans amendments.

Rory said...

For the record, the Charter of Fundamental Rights of the European Union (which is mostly law in most EU countries), does, unfortunately, state (in Article 17.2):

> Intellectual property shall be protected.

It's unfortunate that, unlike the US Consitution, there is no explicit mention of purpose, limited time, etc.

Xamuel said...

"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."

I think it's also worth pointing out that it specifically says "to Authors and Inventors". Not "to record labels", not "to publishing houses", not "to movie studios". Just to authors and inventors. If anything, authors and inventors need protect FROM record labels, publishing houses, and movie studios!

Scott said...

I'd argue the 1st amendment specifically abolishes copyright law.

Ron said...

> I'd argue the 1st amendment specifically abolishes copyright law.

You'd lose.

weoruhfsaf said...

Not a right? So? Congress still wants to protect IP, what's your point? Companies don't have a /right/ to protect their IP? You don't /want/ a thriving movie industry?

And no I'm not in any copyright-dependent industry.

Ron said...

Of course I want a thriving movie industry. (I'm a filmmaker myself.) What I don't want is a movie industry that is empowered to shut down any web site without due process in the name of stopping 'piracy'.

Anonymous said...

The Constitution is based on the principles of natural rights as described by John Locke.
The underlying principle of the right to property is that you own your body/mind, and therefore you own what you produce with it.
The Constitution did not foresee the intellectual property debate, but the preconditions for the existence of the Constitution give you the right to your intellectual property.

Ron said...

No. Locke's theory of property is a theory of *material* property. The reason that there is an enumerated power for Congress to establish (limited) patents and copyrights is precisely because these are *not* natural rights. If they were, there would be no need for Congress to establish these rights by law, and no basis for limiting the periods of time for which they are valid.