What everyone in the SOPA debate is missing: IP is not a fundamental right | Hacker News Reader

What everyone in the SOPA debate is missing: IP is not a fundamental right

rondam.blogspot.com

174 pointslisper78 comments

In the modern world, "property" may be tangible or intangible, as the law may recognize it.

Law may take all sorts of forms. In the U.S., it may take the form of a federal constitution or a state constitution, or of a federal statute or a state statute, or of a federal administrative regulation or a state administrative regulation, or of a federal court decision or a state court decision.

For example, with patents, you have a constitutional provision that empowers the federal legislative branch to authorize grants of limited patent monopolies, you have federal statutes dating back to 1792 that implement that authority by conferring rights on inventors to apply for and obtain patents, you have a regulatory framework under the USPTO that sets out a framework for evaluating what is or is not patentable, and you have federal courts that adjudicate disputes affecting the enforcement of patent rights. One can argue over whether patent grants are "property" or not but this is really more a philosophical argument than a legal one. Those who oppose patents philosophically will argue that patents are nothing more than monopoly grants that cannot be said to have equal dignity with tangible forms of property and that are therefore not worthy of the label "property." In this view, the "property" label has merely been hijacked by those who seek to unfairly skew the debate over whether patent monopolies should ever be granted in the first place. Yet, while this sort of discussion frames the philosophical debate, the law gives patent holders a full complement of rights that confer all the attributes of property: under indisputable governing law today, such rights can be owned exclusively by someone to the exclusion of all others, they can be licensed to others by the rights holder via a license in exchange for value given (fees or royalties, one-time or recurring) or otherwise, either exclusively or non-exclusively, they can be assigned, transferred, or sold for valuable consideration, they can be passed by inheritance in the case of individuals or sold out of bankruptcy court in the case of any holder, and each successive buyer of the rights has valuable, exclusive rights that certainly resemble "property" whatever the philosophical arguments pro or con in using that label. When the Nortel patents sell for several billion dollars on auction, or when Google buys Motorola for many billions of dollars when the main asset is its patent portfolio, the commercial players are buying valuable intangible assets, i.e., bundles of legal rights that can be possessed, used, improved upon, bought, sold, sued upon, and legally enforced to the exclusion of others. In every functional sense, that is "property" whether it is ultimately some fundamental right or not in the philosophical sense.

The same goes for copyright, which protects tangible forms of creative expression, whether writings, films, compositions, software code, or many other items. As with patents, the rights associated with legal protections of such creative expressions can have huge value and such rights can be "owned" by a specific holder to the exclusion of all others, can be licensed, sold, gifted, passed by will, etc. in much the same manner as can tangible forms of property. Such rights, then, in a legal functional sense, have all the attributes of "property" whatever they may be in a fundamental, philosophical sense.

The same goes for trademarks - a form of intangible right by which the law protects a merchant's right to use marks or symbols to identify the origin of goods or services so that others cannot fraudulently pass off their goods or services as those of another. Unlike patents and copyrights, trademarks have their origin in judicial decisions by which the courts decided to grant forms of "property" protection to protectible marks created by merchants while selling their goods or services in commerce. Later, federal statutes and regulatory structures were set up to facilitate more efficient registration of such marks. The result, though, is the same as in the case of patents and copyrights: trademark rights can be bought and sold, licensed, sued upon for enforcement, etc. in all the ways that tangible forms of property can be and in this legal, functional sense they are "property" as much as anything else can be called that.

So too trade secret rights are ascribed to commercial information that is both proprietary (i.e., "owned" by someone) and confidential and such rights similarly can be sold, etc., as in asset sales or stock sales by which entire companies are acquired.

At every level of law (federal and state constitutions, statutes, regulatory bodies, and courts), the foregoing forms of intangible rights are recognized and protected as "property." In the legal sense, then, IP is indisputably treated as "property" whether or not it is "fundamental."

SOPA is illegitimate not because copyrights are illegitimate by nature but because it seeks to take a reasonable enforcement scheme relating to copyrights across the web and turn it into a bastardized version that is grossly unfair and highly destructive. One can argue that copyrights are illegitimate by nature but that is a philosophical argument and not a legal one. Legally, copyrights have consistently been enforced in the U.S. since the adoption of the federal constitution. Are they always legitimately enforced? As a matter of policy, they have not been, in my view. The copyright extensions, the grabbing of public domain materials to put them back in copyright, etc. have been products of grotesque lobbying efforts and cravenly legislative efforts that serve no proper purpose other than to favor a privileged few in efforts that clearly damage the broader society (this is another way of saying they don't serve the legitimate purposes of copyright in the first place). That said, however, the core of copyright has a long and well-recognized place in American law and (I believe) broad significant support from the many people who believe that creative efforts should not be treated as common property but should be protected (within limits) for the benefit of their creators.

It thus seems to me irrelevant to say that IP is not a "fundamental" right (I would agree that IP rights are not fundamental in the constitutional sense). Yes, Congress could constitutionally act to repeal the implementing statutes. But so what? Copyright has been consistently implemented and enforced in the U.S. since the beginning of the nation and there is every reason to believe that it will continue to be protected as "property" in the sense I describe above for many years to come. Copyright may not be "fundamental" in the constitutional sense but it is deeply entrenched in our nation and (in my view) continues to have strong support among the broader public. One can support it while adamantly opposing SOPA. The two should not be confused.

I do not say that copyrights (and patents) are illegitimate by nature. All I'm saying is that it's important to keep in mind why copyrights exist: it is not because the Founders thought it was a fundamental, inalienable right, it is because IP is a pragmatic solution to a practical problem: how do you encourage people to put forth the effort required to invent things and create art? The default state is not that people have a "right" to their work, the default state is that everything is in the public domain, and copyrights and patents are a deviation from that ideal. They are a legitimate deviation for a legitimate purpose, but a deviation nonetheless. I think that it becomes clearer that SOPA is illegitimate when viewed with that perspective.

One might argue that the "default state" for all forms of property, including my car and dinner plates, is in the public domain. What fundamental law that transcends the Constitution says my car is "mine"? Yeah the Constitution has some base in natural law, but that's subjective western thought too, nothing universal. I agree 100% that IP laws today need tweaking, or scrapping, but GP is right that the philosophical debate over it is an unrelated issue.

Taking your car or movie is a fundamental issue. Copying your car or movie is not.

Edit: reflecting on my comment I realize everyone, me included, is looking at this wrong. There is a Constitutional issue - Fourth Amendment "secure in papers and effects". Nobody has a right to just look at & act on the contents of your "papers" (now extending to digital video etc), and contractual access thereto must be respected. You may not like the contracts limiting access to something, but you have a natural obligation to respect them. Copyright and patent law were stopgap measures in place for where such controlled access was hard to implement.

Just a thought.

Indeed, communists do argue that, and the experiment of basing a society on that theory has been done a number of times. The outcomes have generally been poor.

There is also a physical difference, which has been pointed out many times: if I take your car and dinner plates, you no longer have them. If I make a copy of your data, you still have it.

There is also a contemporary debate about whether the term of ownership for physical property should be for limited times, or whether rent should be charged on physical property. Of course, the debate is not framed this way, it is instead framed in terms of levying property taxes, sales, taxes, and inheritance taxes. This is another example of how framing the debate can affect the outcome.

> it is not because the Founders thought it was a fundamental, inalienable right, it is because IP is a pragmatic solution to a practical problem: how do you encourage people to put forth the effort required to invent things and create art?

Is this accurate? Many of the early thinkers applied Lockean property theory to intellectual property and we have many of them referring to it as a right. John Locke himself thought that his theory justified intellectual property rights, even before the particular legal concepts of patents and copyrights existed. Whether or not you agree with Locke, it seems false to claim that those who created IP laws in the U.S. would not have been influenced by such thinking.

In fact, many early US court cases used Lockean property theory to justify patents and copyrights, suggesting that they did not view it as just a pragmatic solution to the problem you bring up, but a fundamental right.

Here's one recent source to justify what I am claiming:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1983614

I'm sure some people back then believed in IP as a fundamental right, just as some do today. But the authors of the Constitution manifestly went out of their way to distinguish between physical and intellectual property, and to constrain IP protection in ways that physical property protection is not. I haven't read Locke so I can't speak to that. However:

> we have many of them referring to it as a right

It is a right (re-read the text: "... to secure ... the exclusive Right to...") but it's not a fundamental right. Not all rights are created equal. There are fundamental rights (sometimes called "recognized" rights) which are the inalienable rights to which men are endowed by their Creator (to use the terminology of the Declaration). These exist independent of any law. Then there are other "granted" rights, which exist because a law has been passed. For example, the right to vote is a granted right in the U.S., not a fundamental right. Granted rights can be taken away by changing the law. Recognized rights can't. At least that's the theory.

I think you're absolutely right: this is very much a philosophical matter, rather than a legal one. There are plenty of reasons to oppose SOPA, after all, both philosophical and practical. But to return to and expand upon the philosophical side of things, here is an excerpt from a good review of Patry's _Moral Panics and the Copyright Wars_ that deals with some of these issues:

  http://ip.jotwell.com/bill-patrys-war-on-copyright-rhetoric/

"Patry’s book focuses on the role rhetoric and metaphor have played in legislative and public debates relating to copyright lawmaking, and how they were instrumental in the continuous expansion of copyrights in both duration and scope. In particular, Patry explores the function metaphors like 'property' and 'piracy' have played in the lawmaking process. Because abstract concepts such as copyright law are difficult to grasp, people tend to rely upon and fall prey to imperfect metaphors, especially when they are used repeatedly by industry lobbyists.

Patry is no fan of a common stock of well-worn copyright metaphors, and he attacks one after another: expressive works as bearing a personal relation to their author (the 'copyright as giving birth' and 'orphan works' metaphors), ownership of copyrighted works as an absolute, unlimited title (the 'property' metaphor), copyrighted works as the singular product of genius (the 'creation on a clean slate' metaphor), and the money to be earned from copyrighted works as the rightful reaping of what an author has sown (the 'agrarian' metaphor).

In Patry’s view, these inapt metaphors serve only to distract us from the real issue, which is how to structure copyright law - a form of economic regulation - to best promote authorship, learning, innovation and progress. And while Patry documents various rhetorical tricks played on Congress’s floor, he also laments what has been missing from the debate: 'in my 27 years of practicing copyright law, I have never seen a study presented to Congress that even makes a stab at demonstrating that if the proposed legislation is passed, X number of works that would not have been created will be.'

Central to Patry’s argument is the structural role that 'moral panics' have played in this process, namely the furtherance of a public state of hysteria respecting illusory threats emanating from 'folk devils'. Such panics often concern youth behavior and new technologies, both of which are not well understood and portrayed as a danger to core social values. Such panics are manufactured in order to capitalize on public (over)reaction to such (imaginary) threats in order to advance economic and social regulation that entrenches incumbent interests. Moral panics contain the following elements: the suggestion that a dire state of emergency is being brought about by a new threat to social order; the suggestion that swift action must be taken in order to prevent imminent social harm; the presentation of false and misleading data to lawmakers regarding the magnitude of that harm; and the suggestion that preemptive action - in this case action protecting copyright industries - serves the national interest. As one would suspect, Jack Valenti makes guest appearances throughout the book."

I think the current copyright laws are already too overreaching and need to be overhauled. They are basically owning a work forever now, and that's not how copyright was supposed to work. Copyright was supposed to protect the creator for a while, and then release it in the public domain, so other creators can make variations of it, and further enrich the culture, which was actually the ultimate goal of copyright.

Protecting the creator was just a means to an end, not the very end itself, which is how MPAA and RIAA are acting right now - like they own everything and forever (with the perpetual 20 year extensions), and are entitled to laws that further protect it, no matter what other rights they abuse to do that (case in point: SOPA, Internet disconnections, ISP monitoring for piracy, etc).

And no, "intellectual property" is not just like real property. Why? Because you can't just take someone's property and make variations of it, but you can do it with creative works, and it has been done since the beginning of time. And again, this was the ultimate goal of copyright, to allow other people later on to use those works, for the betterment of the whole society:

http://www.youtube.com/watch?v=jcvd5JZkUXY

http://www.youtube.com/watch?v=wq5D43qAsVg

So don't assume that just because they named it Intellectual Property now, it's exactly the same as real property. It's actually more unlike real property than it is like it. IP is more of a misnomer in this case. It's the same thing with patents. It's probably safe to assume that they changed it to that name exactly because people would think of it as real property, and give them more control over it than they ever should've had.

I've always thought this is one of the more brilliant quotes concerning intellectual property rights/copyright, in response to those who feel that they "deserve" or are somehow entitled to the protection of IP rights:

"Wise assessment of copyright policy should have nothing to do with how you feel about the person or entity who holds the right at any particular time, because copyright policy is not about identifying wonderful and meritorious people and ensuring—certainly not as an end in itself, anyway—that their income is proportioned to their intrinsic moral desert—or lack thereof. We are all the massive beneficiaries of millennia of accumulated human scientific knowledge and cultural output, and not one of us did anything do deserve a jot of it. We’re all just extremely lucky not to have been born cavemen. The greatest creative genius alive would be hard pressed to create a smiley faced smeared in dung on a tree trunk without that huge and completely undeserved inheritance.

So banish the word “deserve” from your mind when you think about copyright. Nobody “deserves” a goddamn thing. (I say this, for what it’s worth, as someone who makes his living entirely through the production of “intellectual property.”) The only—the only—relevant question is whether a marginal restriction on the general ability to use information incentivizes enough additional information production over the long run to justify denying that marginal use to every other human being on the planet, whether for simple consumption or further creation."

http://www.juliansanchez.com/2011/03/30/4457/

This point cannot be stressed enough, ideas owe everything to that which comes before it, acting like somebody brilliantly creates in a bubble without outside inspiration and help, therefore deserves to take away all the reward is toxic.

Its the tragedy of the commons at an idea level really.

I think it'd be useful to separate the fundamental idea of copyright, and what it means in reality: I certainly believe that the author of an idea ought to be recognized for it (be it that there're surely other people involved in some manner); the question is only what it entitles one to.

In a non-capitalist society, recognition would be enough since needs are cared for otherwise, but here and now it's still necessary to allow the authors to profit from their ideas.

Still, given that most other people have to work continuously rather than benefit from past work for years to come, it might make sense to limit actual copyright of a work intended for sale to, say, 5 years (private works like personal photographs would retain theirs). Subsequent to this, the author's right to be recognized would naturally still remain, but the work itself would enter public domain.

Kinsella, a legal professional in the area of IP in the US, covers the legal and historical context surrounding IP and comes to similar conclusions. In short, he concludes, you cannot have Intellectual Property rights without restricting someone else's Physical Property rights; IP is fundamentally at odds with Physical Property rights.

True to form, his book is available for free in digital formats: http://mises.org/resources/3582/Against-Intellectual-Propert...

And audio: http://blog.mises.org/11717/against-intellectual-property-au...

EDIT: clarified that Kinsella is a lawyer and knows this subject well

It reminds me the Monsanto Canada Inc. v. Schmeiser case, in which, the IP on GMOs is clearly at odds with the land property rights of the owner.

Article 27 of the Universal Declaration of Human Rights

   (1) Everyone has the right freely to participate in the cultural life
       of the community, to enjoy the arts and to share in scientific
       advancement and its benefits.
   (2) Everyone has the right to the protection of the moral and material
       interests resulting from any scientific, literary or artistic
       production of which he is the author.

http://en.wikipedia.org/wiki/Universal_Declaration_of_Human_...

Please forgive me if I'm missing something, but doesn't Article 29, Section 3 make the Universal Declaration of Human Rights kind of a joke? The right to enjoy the arts doesn't really have teeth if the UN can just say it's contrary to its principles.

http://www.un.org/en/documents/udhr/ Article 29, Section 3 of the Universal Declaration of Human Rights: "These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations."

Wauw, can you imagine if the framers had inserted:

'These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United States Government'.

The universal declaration of Human Rights truely is a joke.

I think for context the full article needs to be posted.

   (1) Everyone has duties to the community in which alone the free
       and full development of his personality is possible.
   (2) In the exercise of his rights and freedoms, everyone shall be
       subject only to such limitations as are determined by law
       solely for the purpose of securing due recognition and
       respect for the rights and freedoms of others and of meeting
       the just requirements of morality, public order and the
       general welfare in a democratic society.
   (3) These rights and freedoms may in no case be exercised contrary
       to the purposes and principles of the United Nations.

The purposes and principles are defined in the preamble of the declaration.

   PREAMBLE

   Whereas recognition of the inherent dignity and of the equal
   and
   inalienable rights of all members of the human family is the
   foundation of freedom, justice and peace in the world,
   
   Whereas disregard and contempt for human rights have resulted
   in barbarous acts which have outraged the conscience of mankind,
   and the advent of a world in which human beings shall enjoy
   freedom of speech and belief and freedom from fear and want
   has been proclaimed as the highest aspiration of the common
   people,
   
   Whereas it is essential, if man is not to be compelled to have
   recourse, as a last resort, to rebellion against tyranny and
   oppression, that human rights should be protected by the rule of
   law,
   
   Whereas it is essential to promote the development of friendly
   relations between nations,
   
   Whereas the peoples of the United Nations have in the Charter
   reaffirmed their faith in fundamental human rights, in the
   dignity and worth of the human person and in the equal rights
   of men and women and have determined to promote social progress
   and better standards of life in larger freedom,
   
   Whereas Member States have pledged themselves to achieve, in
   co-operation with the United Nations, the promotion of 
   universal respect for and observance of human rights and 
   fundamental freedoms,
   
   Whereas a common understanding of these rights and freedoms
   is of the greatest importance for the full realization of this
   pledge,

Gotchya, so you're saying that the 'purposes and principles of the United Nations' is being used as a technical term referencing the rest of the document, and doesn't depend on what the organization of the UN wants at any specific moment.

I agree that "Intellectual Property" isn't property per se.

It's just too easy to re-invent a particular bit of "IP". I mean, I've done some of those on-line "C Programming Interview Test Questions", and come up with something identical to the given answer, except for choice of variable names.

Independent invention just ruins "IP" as property.

Independent creation only applies to copyright. If I independently write the same code as you, we both have copyright on it.

Patents exclude independent invention. If we both invent the same thing and I have the patent, you cannot use your invention.

Trademarks allow independent creation in separate geographic areas, but a pre-existing use can exclude an independent creation.

This is one of the many reasons that "Intellectual Property" is a misnomer - the differences between copyrights and patents and trademarks are probably larger than the similarities.

I agree with you on the distinction of copyright and patent with respect to independent invention. But that's just a human-made distinction, in the USA. Whoever wrote the laws didn't get independent invention enacted in patents.

I also agree with your reason for "IP" as a misnomer.

I wanted to speak in a general or philosophical sense. not in a legal, specific sense. The internally-inconsistent concept of "Intellectual Property" founders on the rock of independent invention, if you reason from first principles, rather than attempting to propagandize your way through to some kind of state-enforced monopoly.

Edit: I see that the following comment may invalidate mine. http://news.ycombinator.com/item?id=3463292

Minor point:

> 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".

This is not exactly what I read it. I understood that the congress can grant monopolies to promote Arts and Science. Nothing more, nothing less. It doesn't explicitly forbid the congress to use those monopolies for other purposes. Nor does it say anything about the case where granting monopolies doesn't promote Art and Science at all, by the way.

Now if it can be established that such monopolies hinders other rights described in the constitution, then you are correct: they can only be used to promote Art and Science. And if we could further establish that those monopolies do not actually promote Art and Science, then it may be unconstitutional to use them at all.

> It doesn't explicitly forbid the congress to use those monopolies for other purposes.

What forbids Congress to use those monopoly grants for other purposes is the doctrine of enumerated powers.

> What forbids Congress to use those monopoly grants for other purposes is the doctrine of enumerated powers.

Except that said doctrine is mostly dead, thanks to the commerce clause, an expansive definition of "interstate", and "promote the general welfare".

What? The Constitution gives the government the right to legislate to promote the general welfare?

So they could compel people, with the treat of prison time, to exercise and eat healthy?

I had to look up "useful Arts" in wikipedia, because Lady Gaga doesn't sounds like what the founders would have considered "useful" to me.

In the clause, the phrase "useful Arts" is meant to reference inventions, while "Science" is meant to reference human knowledge, including that which is encompassed in literature and the "fine arts".

It's interesting that we've interpreted "Science" to mean all of these things. If you were to take the constitution more literally, it would seem that a lot of things that are covered by copyright today oughtn't be, and that copyright would require a system similar to what patent law has today.

Every time I see the term, I can't help but imagine Mike Myers, on the verge of being verklempt suggesting that its neither "intellectual", nor "property" and then instructing us to talk amongst ourselves.

Instead of calling intellectual property we should refer to it as intellectual monopoly since that is really what its. It restricts what you can do with your own property.

Monopoly can be more restrictive actually. For example, if it is only a monopoly, the institution can grant the monopoly but restrict patent transfer/sale. Consider that most patent trolling companies are using patents they acquired, it may be a good thing. But as long as the current system setup goes, it is full property rights you have over your intellectual "product" (i.e. right to use, transfer, exclude and destroy)

Actually, copyright and patent exclude the right to destroy.

A patent must be filed & public to be granted.

A copyright must be registered to file suit.

To allow destruction would violate the very purpose of patent/copyright.

> A copyright must be registered to file suit.

Nope! Not in the USA, anyhow. If you sue without registering, all it does is make statutory damages unavailable, it doesn't block you from filling suit. Also, you can register any time before filing suit, losing only your presumption of validity in certain cases. That said, both of those things are highly desirable, so it would be pretty silly to sue without taking care of those matters first.

That said, get a lawyer if you ever have more than an academic interest in this, because there are always weird edge cases when dealing with the law.

http://www.copyright.gov/fls/sl09.pdf states:

...the Copyright Office must have acted on your application before you can file a suit for copyright infringement, and certain remedies, such as statutory damages and attorney’s fees, are available only for acts of infringement that occurred after the effective date of registration.

Hmm, you're right. I got confused somewhere.

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/...

Looking into the original intent of the constitution and imagining the emotions of those involved with its drafting leaves a sense of fantastic optimism, intelligence, and idyllic hope. It's a beautiful piece of Ameprican history that I always take the time to read into when it comes up. I'm glad it was brought up in this context.

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.

When the discussion of rights comes up, I think that George Carlin has some wise words on the subject.

http://www.youtube.com/watch?v=m9-R8T1SuG4

"...Either we have unlimited rights, or we have no rights at all." -George Carlin

How does this distinction reframe the SOPA debate?

The current debate is framed by the presumption that "intellectual property" is a fundamental right that must be protected, and the disagreement is only over the means by which this is done and the collateral damage that results. Questioning the premise of "intellectual property" (and, by extension, "online piracy") makes the position of SOPA's supporters less tenable.

I was hoping for an explanation of how the current arguments draw power from the distinction between 'fundamental' vs. 'government granted' rights. Simply restating that "the debate is framed that way" provides no such explanation.

The position of SOPA's supporters is "hey government, there are people stealing our work on a massive scale; fucking do something about it." The actual enforcement mechanisms in the bill have taken center stage in the debate because that position statement is credible (and obviously so).

I did not hear the author's post as questioning authorship as a concept, or the fact that U.S. law recognizes authorship as an activity which confers upon the author legal rights (or are we calling all of those 'privileges' now?) that are not granted to everyone else.

(Note: I am the author.)

Here's an analogy: imagine a time before the civil war when slave owners go to Congress to demand draconian measures be enacted to find and repatriate runaway slaves, i.e. "Hey government, people are stealing our property, fucking do something about it" as you say. One can argue against such measures on all sorts of pragmatic and legal grounds, but all of those arguments are strengthened if one questions the underlying premise that humans can legitimately be considered property.

Likewise, all of the pragmatic and legal arguments against SOPA are strengthened if one does not tacitly accept the premise that intellectual property has the same legal standing as other kinds of property.

Thanks, I think I now understand (better, at least) where your original post was coming from.

So now that we're not "tacitly" accepting that IP has "the same" legal foundations qua other properties like cars and laptops, do you also intend to non-tacitly reject the claim that "online piracy" is a thing that subjects content producers to harm?

Because it seems to me that if you agree there is harm at all, we jump to a debate where we're arguing (I think) whether the Extent of the harm is such that the Proposed Enforcement Mechanisms and Penalties are a legitimate fit.

My impression of the SOPA hearing was that's pretty much where we are today. e.g. Google's recommendation to "follow the money" was an attempt to fit an enforcement mechanism to illegitimate financial gain by parties other than the content owner.

> do you also intend to non-tacitly reject the claim that "online piracy" is a thing that subjects content producers to harm?

I would say that I would examine this claim under the new, more correct perspective rather than reject it. "Harm" is a relative notion. The baseline state against which the situation is be measured is that all information by default should be in the public domain. The gains that authors get from copyrights are a grant, not an entitlement, to encourage them to produce. So the "harm" is that the grant is (perhaps) smaller than it would by under a more aggressive enforcement regime.

The real test ought to be: is the grant large enough to serve the purpose, i.e. to encourage people to produce creative works? The answer at the moment seems to be manifestly that it is. I would challenge you to find even a single example of a creative work that might have been produced but wasn't because of fear of piracy.

I strongly agree that harm is relative, and that the relative harm of infringement must be balanced against the potential harms of any enforcement mechanism (with significant room for error on the side of under-enforcement).

I strongly object to the idea that IP rights are only real to the extent that they are a) granted by the state and b) encourage additional creative effort. Utilitarianism is a great model for a democratic society to use when encoding things into legislation, but isn't a great "be all" for ethical theory or ontology.

Your test and request are problematic. If there is a creative work that might have been produced but wasn't, for the reason you'd like me to somehow cite evidence for, by what search method (other than knowledge of my own personal creative endeavors) should I seek out such an example? And if I pluck from my own experience, what would constitute evidence that the actual reasons for non-production are what I claim them to be?

I would bet there are thousands of bedroom-class electronic music producers who never devote a ton of effort to their talents because of the rate at which music is pirated. The number of hours it takes to become passable at production is quite large, even with great tools. And even if they become accomplished, they have no great hope of turning that accomplishment into gigs or recordings that pay a living wage, precisely because piracy became so rampant that people now expect new artists to give away their first EP-worth for free or under a "pay what you want" scheme.

The world has decided that the fruit of those first 1000-4000 hours shouldn't cost anything. You're telling me that doesn't have a chilling effect on people deciding whether or not to spend that kind of time?

"But see," I imagine you saying, "Now we only get artists who were willing to do Whatever It Takes to become great!" Yeah well, a lot of those folks suck compared to some other guy who had a family and a mortgage to think about; you'll just never hear that guy.

> I strongly object to the idea that IP rights are only real to the extent that they are a) granted by the state and b) encourage additional creative effort.

Then you'll have to amend the Constitution. Or you could try to make the argument that the 1st amendment supersedes the Article 2 authority to establish copyright. Some people are doing that, but I'm pretty sure they're going to lose.

> If there is a creative work that might have been produced but wasn't, for the reason you'd like me to somehow cite evidence for, by what search method (other than knowledge of my own personal creative endeavors) should I seek out such an example?

By the same methodology that you use to do any market research: ask people in the industry. There is ample precedent for this sort of thing. For example, the production of small general aviation aircraft more or less ceased during the 80's and 90's. It was pretty straightforward to show that the reason this happened was because of liability laws. These laws were changed in 1994, and now the production of light aircraft resumed.

I don't see an analogous shortage of movies. Quite the opposite: there seems to be an overwhelming glut on the market. The Sundance Film Festival got 8000 submissions for 100 openings. There's so much new music coming out that it's a full time job to keep up with it all. That seems to me like pretty compelling evidence that piracy is not much of an impediment to production.

IP could bot be a fundamental right, but unrestricted communication is.

Since this article talks about the constitution, I wanted to quote the preamble to the bill of rights. Since this set of amendments was enacted, as part of the deal to get the constitution passed, it is illustrative of the perspective of right at the time of adoption of the constitution.

"THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution"

In other words, 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". 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.

The constitution is a document constructed under a theory of natural rights, by a group of men, many of whom had just fought off a government they considered oppressive because it didn't recognize their natural rights.

Every right, IP, or not, precedes the constitution, they are not granted by the constitution.

Thus, where the constitution says: "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."

The use of the word "securing" is deliberate.

I'm not going to debate whether intellectual property is a natural right or not. (But I wonder, if you come up with an invention but don't tell anybody, isn't that a natural property right? I mean, to say that you don't' have a right to it, would be to say that others have the right to forcibly take it from you, wouldn't it?)

My point is simply that the constitution doesn't grant any rights, rights precede it. The constitution gives the federal government limited and enumerated powers. And the federal government does not have the power to pass SOPA, both because there is no enumerated power to do what it does, and because the first amendment forbids it.

The question of whether IP is a natural right is a separate one, and opposition to soap on constitutional grounds does not imply conceding it, or not.

> There is no such thing, in the american form of government, as "constitutional rights".

That is a really excellent point.

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

This is the exact interpretation of such rights that one arrives at under John Locke's view of the state of nature which he argued preceded society (and thus government of any kind). One of the big takeaways from his Second Treatise which was incredibly influential to many of the "founding fathers" (I feel like selling out when I say that, but hey, it's succinct. unlike this now-meta parenthetical)

... and somehow I just remembered that random bit from a summer course at Cornell I took during high school, but if you asked me what I learned in GOVT5 my junior year of college, I honestly couldn't tell you anything other than that boris yeltsin died on new years eve, 1999. And that the freshmen were too young to already know that Czechoslovakia was not a god damned soviet republic.

Boris Yeltsin didn't die on new year eve 1999, he died in April 2007. Yeltsin resigned on new year eve 1999, effectively relinquishing the power to Putin.

... I'd be embarrassed, but given the context in which I brought it up...

(But I wonder, if you come up with an invention but don't tell anybody, isn't that a natural property right? I mean, to say that you don't' have a right to it, would be to say that others have the right to forcibly take it from you, wouldn't it?)

Irrelevant. If you haven't told anybody, they have to violate your rights to your property (stealing the plans of the invention) or to your liberty (coercing you in some way to tell them your plans) to obtain your invention.

The whole point of copyright and patents¹ is not to protect your right to the invention, but to give you the right to prevent others from using their legally obtained copies of your invention as they see fit.

¹ I don't like the term IP; see https://www.gnu.org/philosophy/not-ipr.html

Yes. In the absence of copyright/patent/trademark, everyone can use every bit of knowledge they come across.

The "natural right" is the right to use information. Copyrights, patents, and trademark are constitutional limitations of this natural right, hoping to encourage more creation and sharing of knowledge to increase the total amount available to all.

What's hypocritical about that is that restricting the Internet will discourage creation and sharing of knowledge.

Trademarks don't really affect that, that's why I don't like the term IP. Trademarks simply say you can't present yourself as others, not that you can't use any kind of information.

As a community of thoughtful 21st-century people, I suggest we reject entirely the idea of "natural rights" and treat it as an archaism.

Natural laws exist; regardless of anything you, I, or the government does, gravity continues to exist as a physical, observable force. Natural rights do not work the same way; they are inherently and in principle unobservable both directly and indirectly. The only thing that is real are the rights that we have in practice (e.g. as a function of law, economics, culture) and the rights that we ought to have, based on testable theories of how these rights lead to human flourishing.

I say this not to demean rights or to say rights or liberty are unimportant. (Similarly, if I say evolution rather than direct divine intervention created humans, that does not demean humans.)

The reason I make this claim is because "natural rights" is a complex concept that many people struggle to understand. But most of that struggle comes from it being an unsustainable idea as well as a dead end: it discourages serious consideration of how we should best organize our society. Religiously-inspired philosophers (John Locke, in this case) spent much time on ideas like this; certainly some people inspired by these ideas did some good things. But I think in our modern era we should set these ideas and other bad philosophy aside and work from better foundations.

Not only will this lead to stronger, more useful thinking generally, but it will also lead to more secular, persuasive dialogue with our legislators in the short term. They are bound in various ways by the Constitution, but they are not bound by the theory of natural or inalienable rights, which is not actually part of that document (see http://en.wikipedia.org/wiki/Declarationism).

edited for clarity.

Better foundations? You mean utilitarianism? That's a dead end too.

As a monkey-troup-descended race, we operate on some pretty common and predictable impulses. To manage those impulses we establish some premises and call them rights. Right to life, liberty etc.

Call them something else than 'natural rights' if you must, but its folly to ignore their existance.

Better foundations? You mean utilitarianism? That's a dead end too.

Currently, utilitarianism does seem to have problems, but not every framework for measuring or improving social well-being will necessarily share the problems of utilitarianism. One promising approach: http://en.wikipedia.org/wiki/Capability_approach.

...we operate on some pretty common and predictable impulses. To manage those impulses we establish some premises and call them rights. Right to life, liberty etc.

If I understand you correctly, you are saying that rights are something separate from natural impulses; they are things that we use appropriately manage (or channel) those impulses. I basically agree. But: "manage" must mean some goal that is separate from the impulses themselves, and when we establish rights that we think will appropriately direct impulses towards some goal, those rights--whether inspired by science or theology--cannot be considered natural. They are human guesses, subject to scrutiny, discussion, and improvement--to call them natural is untrue and confusing.

Your argument is an echo of a similar one made during the debates over the Bill of Rights. While there was general agreement that the government should be limited to enumerated powers, there was a lot of debate over whether there should also be enumerated rights. Those in favor argued that the enumerated powers would tend to expand and intrude on core liberties unless those fundamental rights were also made explicit. Those against generally argued that including the rights would send the wrong message, and that we would eventually be limited to only those rights. The latter argument lost and here we are.

So what about IP? Well, as you say, we ought to recognize fundamental rights even if they aren't in the Constitution. But it's fairly clear that the founders didn't find copyrights or patents to be fundamental, since they failed to include them in the Bill of Rights but instead explicitly included them in the enumeration of powers. And the term 'intellectual property' wasn't coined until long after the Constitution was written. Copyrights and patents weren't a separate form of property in the law, they were monopolies granted by the state in order to promote manufacturing and distribution, which were at that time very capital intensive.

Regarding your example:

[T]o say that you don't' have a right to it, would be to say that others have the right to forcibly take it from you, wouldn't it?

No, as you noted earlier the Constitution concerns what the government can do to you. It is silent as to what your fellow citizens can do. The 'forcible' part of your hypothetical is already covered by other parts of the Bill of Rights (the Fourth, for instance). So I'd rephrase your statement of the question:

"To say that you don't have an exclusive right to the invention would be to say that the government could copy it and make use of it without your permission, wouldn't it?"

That's closer to the issue we're debating. And in fact, the Government has exactly that power today. But that doesn't settle the issue, because it has the same power over real property. And in both cases, the owner does receive compensation. Why compensate someone for something they're not in some way entitled to?

History is not going to give us the answer as to whether IP is a right. It's going be decided as a matter of modern politics, not historical precedent.

>The use of the word "securing" is deliberate.

I believe you are suggesting that like Freedom of Speech, the "right" to control a Writing or Discovery exists without the constitution. Your evidence is the use of the word "securing", to suggest that the Founders also believed that right existed already.

However, I assert that in fact we all have Rights to everyone's Writings and Discoveries as soon as they are shared. Therefore, I read the constitution as saying:

"We all have rights to Writings and Discoveries, but to promote the progress of science and useful arts, we will limit these rights exclusively to the authors and inventors for a limited time."

If, as you suggest, the Founders had believed that the right of an Author to his or her Writings existed and was natural, then in order to allow a Writing to join the public domain they would have had to have said:

"To secure the common good, we shall limit an Authors and Inventors Natural Right to their Writings and Discoveries to a period of time, after which they shall belong to the commons."

The Founders clearly did not believe that Authors had such natural rights.

And its not Property. Its information.

edit: Just because I'm stating this fact, doesn't mean that I endorse it. Please, just because you agree that the world unfortunately is this way, don't downvote me as if I'm the cause of the current state of affairs. I'm not old enough or powerful enough to be so.

Is the author a constitutional lawyer? Because if not, I really can't trust any of this.

The reason that constitutional lawyers exist is because this short document is deceptively sophisticated and every interpretation of every stanza has seen its day in court almost every generation since its authorship.

Just reading something and assuming that the legal ramifications are clear and apparent without knowing the extensive history of the actual legal ramifications belongs more in the world of political opinion than anything remotely approximate to legal standing.

It's almost as if a corpus of court proceedings a 100 meters long should be affixed to every word in order to gain an appreciation for what is legally pursuant via the constitution.

I'm not sure I can agree with everything you're saying. Was the Constitution written with the expectation that later generations would consider it "deceptively sophisticated" and that only "constitutional lawyers" should be able to make sense of it? Was it purposefully written so that later constitutional lawyers could interpret it in new ways that seem counter-intuitive to everyone else? I don't think so.

I do.

Of course not. But that's what's happened. And as a result, the barrier to entry in knowing the true meaning is now quite high.

I'm not placing a vote of approval of this reality; just stating that it exists. It aggravates me too.

Then where did the supposed complexity come from?

What does the US constitution have to do with fundamental rights?

What's a fundamental right, who protects it, and is there any document that enumerates said rights so that parties don't disagree?

If find yourself wanting for a piece of paper to enumerate your rights for you (I know I certainly do not), you can do a hell of a lot better than the US constitution. That document is primarily just a set of rules for a government, not a declaration of rights.

For starters, check out the Universal Declaration of Human Rights. It is an easy read and meant for all people, not just those who happen to reside in a specific geographic area.

My rule of thumb though? If you think a piece of paper is something that grants you a right, then it's clearly not a fundamental right.

see federalist papers number 51 and 10 to see the thoughts on the constitution and human rights. Items covered include civil rights, religious freedoms, minority rights, the tyranny of the majority, balancing the power of conflicting classifications of rights, etc ...

I would love to read those papers, but there is no way I can -- the language is simply too complex and they use too many 'old' words.

Do you know any good collection of them with footnotes and explanations?

I actually don't find them difficult but mostly because I've read a lot of stuff from the era. It's kind of like Shakespeare, it's hard initially but then you get in the swing of things. There's also plenty of civics style booklets with explanations.

>My rule of thumb though? If you think a piece of paper is something that grants you a right, then it's clearly not a fundamental right.

All rights, natural or legal only exist so long as they are protected. The Bill of Rights is a promise by the US Government to protect those rights stated.

The fact that a particular right is promised to be upheld in a document has no bearing on whether it is a 'natural' or 'legal right'.

"All rights, natural or legal only exist so long as they are protected."

Trivially false. Did women in the 19th century have the fundamental right to vote? Of course. Were the allowed? No.

Perhaps I should rephrase my previous comment to reflect some vagueness associated with the subject. While in a sense rights can exist for all things of all circumstances, they effectively do not exist for the those who cannot utilize them. Someone can give up their rights to something can they not?

But more to the point, the example you gave is not an example of a 'natural right'. I am assuming you are using 'fundamental' and 'natural' interchangeably, for the phrase fundamental right is something generally understood in the context of a legal system. And when talking about rights in a legal context, those rights which haven't been granted do not exist, and we are both aware that women were not granted the right to vote until 1920.

Since the right to vote certainly wasn't a legal right until 1920, one can only assume you aren't talking about legal rights, but rather some ideal you hold to be true. The idea that there are certain standards of morality and humanity that all beneficent bodies must observe is something that loosely falls within the realm of "natural rights", ie those rights that have not been bestowed by human law. And the idea that the right to vote exists beyond the realm of human law and government is absurd, as I am sure you are well aware.

If you are of the mind that fundamental rights are those which adhere to a certain well accepted set of values ( as seen in the case of UDHR ), then this is really a discussion on ethics, and therefore any difference of opinion concerning a set of 'fundamental rights' will be arbitrary.

Any system of ethics or rights or whatever the hell you want to call it that does not include 'the right of women to vote' is shit and not worthy of consideration.

Rights are not given, nor bestowed. They cannot be given up or taken away. Any other conceptual system of "rights" is bullshit pandering to those who wish to oppress.

No, I am not a lawyer. The idea that only lawyers can be qualified to comment on the law is myth promulgated by lawyers. There is a reason that the first three words of the Constitution are "We the People" and not "We the Lawyers."

ah, it was "We the [non-native][male][land-owning][non-enslaved] people [between specific longitude and latitudinal points][that aren't corporations, at least, for another hundred years][unless you are a slave owner, in which case multiply your the number of slaves you own by 0.6 and then add it to you (aka, +1)]".

We have been actively struggling and expanding just that alone for generations now.

The interesting thing about using court rulings to interpret the law is that legal precedent is only created when some lawyer is on the wrong side of a case...

[Yes, that's a slight oversimplification.]

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