The Drivetime Chronicles

Don't Call Copyright A Government-Granted Monopoly

by David Newhoff

When most people discuss or debate copyright’s value in the contemporary market, they talk about the utility of the law—typically arguing the efficacy or rationale of specific contours like term length or enforcement—while generally overlooking the philosophical principles that led to the IP clause being written into the U.S. Constitution in the first place.  This is of course not uncommon with any number of issues.  A particular constituency or individual citizen with a political agenda is apt to read the one sentence or phrase in our elegantly concise Constitution and interpret it as he sees fit.  For instance, the Framers will often allude briefly to a rationale with a dependent clause like “In order to maintain a well-regulated militia …” which is then interpreted as either a still-relevant or now-obsolete explanation for the 2nd Amendment, depending on whether the interpreter supports or refutes gun rights.

Similarly, the conditional expression setting up the IP clause, “The Congress shall have the power to promote the progress of Science and useful Arts …” has been the source of heated argument that copyright’s utility is clearly in the service of society; and this premise then becomes the basis for describing copyright as a “rent”,  “tax”, or “monopoly”, granted somewhat reluctantly by the government to individual authors (and inventors) in order to extract the fruits of their labor for the greater good.

In fact, a few years ago, Mike Masnick riled up his readers at Techdirt over the fact that Register of Copyrights Maria Pallante had the nerve to suggest that copyright serves the author first and society second.  Oh, the screaming and the gnashing of teeth that ensued.  But, of course, from a utilitarian perspective, Pallante was making a perfectly innocuous statement of fact about the only way in which the order of operations can be applied.  Clearly, if the author does not first create, society is never served at all.  But that’s not what I want to talk about.

I recently finished a new book, written primarily for legal scholars, by Randolph J. May and Seth L. Cooper of the Free State Foundation, called The Constitutional Foundations of Intellectual Property:  A Natural Rights Perspective. The book makes a case for the philosophical underpinnings of intellectual property in the U.S. Constitution, beginning with the Enlightenment influences on the Framers and concluding with those principles ultimately being expressed in the post-Civil War amendments ending slavery and affirming the rights of citizens regardless of their state of residence.

Terry Hart’s latest post on Copyhype is a review of this book, in which he rightly points out that the Natural Rights foundation for intellectual property has been largely substituted by a purely utilitarian discussion among most academics critical of contemporary copyright.  And these murmurings in the hallowed halls of law colleges have trickled down into the blogosphere where they have coalesced around the meme that copyright is a government-granted monopoly.  But to ignore the philosophical precedent for intellectual property—regardless of the necessity to debate the utilitarian contours of the laws themselves—is a tragically flawed mistake for any citizen to make, no matter where he or she sits on the political spectrum.  And this is because the intellectual property right is really just one branch on a rather important philosophical tree to which all our favorite civil rights are also attached.

As mentioned, May and Cooper’s book is written by academics for academics, though it is entirely accessible to any reader, if constitutional scholarship on intellectual property is your cup of post-revolutionary tea, so to speak. But in simple terms, the first part of the book supports the view that the appearance of the intellectual property clause in Article 1, Section 8, Paragraph 8 of our Constitution is an expression of the principles articulated primarily by English philosopher John Locke in his Two Treatises on Government. First published in 1689/90—exactly a century before the first U.S. Copyright Act—these treatises imagine the individual in a hypothetical State of Nature in order to then express what Locke sees as the purpose of entering into the social contract we call the state or government.  In the State of Nature (i.e. a condition in which the individual enjoys what we call Natural Rights), Locke argues that the individual has a “property in his own person” and that part of the purpose of government is the security of his property, which is more commonly known by Americans as the pursuit of Happiness.

Locke uses the word property in a much broader sense than we generally to use it today, which is to say that each of us has a property in our being—our bodies, our minds, and our faculties.  We still believe in this principle, of course, we just don’t generally use the word property to talk about it.  But from this Lockean notion of property comes the idea that if your hands and mind are yours, then what you produce with your hands and mind—whether it’s a harvest of wheat or a novel—is logically also yours.  Critics of intellectual property will often bypass Locke’s definition of the word property in order to draw contemporary attention to the logic that physical property like a car is fundamentally different from intellectual property like a copyright in a song.  This argument carries particular weight in the digital age when copies of intellectual works are now profoundly non-physical; but as May and Cooper point out, the differences between these types of property are appropriately reflected in the contours of the laws themselves—and remain amendable according to changes in market and social conditions—while the foundational principles for both types of property remain sound and relevant.

The Lockean notion of a property right in the fruits of one’s labor should not, in my opinion, ever be relinquished to the authority of the government as a privilege—which is what a monopoly technically is—rather than asserted and protected as an expression of our Natural Rights as individuals.  As May and Cooper demonstrate, both physical and intellectual property act to define and limit the role of government, which is entirely consistent with American constitutionalism, whereas fostering monopolies is anathema to those principles. Government’s mandate to protect both types of property, the authors argue, acts as a hedge against “centralized decision-making,” which is to say a society that is not composed of free-thinking individuals. There is no question that May and Cooper approach their argument for the foundation of IP from a libertarian/conservative perspective of limiting the power of government; and this is actually refreshing inasmuch as I have never quite understood those academics of the same political stripe, who have lately portrayed copyright as a government-granted privilege.  That seems to me like surrendering considerable ideological territory in a way that is inconsistent with the advocacy of limited government.

At the same time, for those of us who lean more politically left, I would add that I believe the fruits of one’s labor principle also acts to limit the power of capital, which is particularly relevant today when so many people are frustrated to the point of concluding that capitalism is only capable of producing wealth consolidation, a foundering middle class, and corporate control of government itself.  In the same way that I would advocate fixing capitalism rather than throwing out the proverbial baby with the bathwater, I would point out that the fruits of one’s labor concept—as it is specifically expressed through intellectual property—really implies a much larger social contract than the incentives of copyright and patent holders.

The idea that your labor is your own until you provide its fruits in fair trade to someone else is the basis of every hard-won labor and civil right—because these rights are often intertwined—over the worst abuses of either corporate owners or government agencies.  This is also consistent with the views of the Founders, who sought to foster neither an intrusive government nor a new nobility that would give rise to new forms of feudalism.  And because too little of the former provides opportunity for the latter, and vice versa, it is our fate to constantly seek to balance these opposing forces.  Hence, the fruits of labor right vested in every individual citizen acts as a balancing force against both extremes; and IP rights are merely one specific expression of this much larger principle.  Even free speech itself is an extension of this Lockean principle that the individual has a property in his person.

With 1% of the population owning more than 50% of the nation’s wealth; with direct assaults on labor rights in certain regions and economic sectors; with technologies threatening to devalue human work in various ways; and with extreme examples of certain corporate owners getting away with imposing their own morals on employees, this is a terrible time to be calling intellectual property a government granted monopoly.  I would never want to cede the logical conclusion of that argument, to suggest that every citizen’s right to the fruits of his or her labor is in any way a privilege, which may be argued away on the basis of apparent utility alone.  Ultimately, we’re talking about a human right that was forged in the crucible of a century and a half of English civil strife over religion and the divine right of kings.  It may be just a short sentence in the Constitution, but it has a long and bloody intellectual pedigree.