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Article posted Oct 02 2012, 10:48 AM Category: Science/Technology Source: Techdirt Print

Can We Kill The Myth That The Constitution Guarantees Copyrights And Patents?

by Mike Masnick

We've seen it all too frequently: copyright and patent system supporters insisting that these forms of government-granted monopoly privileges are guaranteed by the Constitution, due to Article I, Section 8, Clause 8. People like to claim that, for example, the First Amendment can't conflict with copyright law since "both are rights provided by the Constitution." Of course, that's not even close to true. The Constitution does not grant rights. It just defines what the government can and cannot do. The "free speech" right we often discuss is not granted by the Constitution, but rather preserved by the Constitution... As for the copyright and patent clause? That's very often misinterpreted. All that clause does is give permission to Congress to create such laws -- but solely for the purpose of "promot[ing] the progress of science and the useful arts."

The latest person to make such a bizarrely incorrect claim is Colin Hanna, who purports to run an organization "advocating for a constitutional approach to public policy making." Kind of surprising that he'd say that when it's not clear he's all that familiar with the Constitution, as he argues at length about the supposed Constitutional "rights" of "authors, scientists and inventors."
Protecting intellectual property is in fact a property rights issue. Protecting free speech is not the same as stopping the outright theft of another's property. It's the difference between liberty and lawlessness. We must be in favor of the former and opposed to the latter.

On this Constitution Day, we should begin to rethink the protection of intellectual property rights on the Internet not as a limitation of Internet freedom, but rather as a logical contemporary interpretation extension of the basic Constitutional rights of authors, scientists and inventors that our Framers set forth so plainly two and a quarter centuries ago.
The title of the article is "our forgotten constitutional right: intellectual property." But, again, that's ridiculous and wrong and not what the Constitution says at all. Section 8 enumerates the powers of Congress, not the public. To interpret that to mean there's a Constitutional Right to patents and copyrights is not just ridiculous, but would open up all sorts of bizarre "rights" on other issues in Section 8. Let's go through a few examples, if Hanna's interpretation is correct.
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
Under "Hanna-logic," where he believes the powers given to Congress to do something mean that Americans have a "right" to the output, it would appear that the Constitution clearly grants the public the right to have all the money they want. Clearly, this line is the "right to money" line. Where's mine?
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
I'm declaring war! Anyone want a letter of marque? Let me know! It's my right!
To provide and maintain a Navy;
I do live near the water... and apparently, under Hanna-logic, I have a "right" to make use of the Navy... Hmm...

Point made? Section 8 does not grant any rights to the public at all. It simply gives Congress the power to enact laws -- in the case of the copyright clause, solely for the purpose of promoting the progress of science and the useful arts. That has no bearing on whether or not such laws or their output are a "right" in any sense of the word.





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