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Comment by lisper | Hacker News Reader

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.

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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.

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