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The legal scheme of intellectual property in the United States is an unusual one, relative to the schema of our cousins in other liberal Western democracies. Article I, Section 8, Clause 8 of our Constitution, the source of Congress' power to protect intellectual property, reads as follows:

“[The Congress shall have the 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.”

For our present purposes, there are two key items to draw out of this clause. First, we notice that the “exclusive Right” of authors and inventors is secured in order “to promote the Progress of Science and useful Arts.” This is to say that protecting individual authors and inventors is not, strictly speaking, the point of intellectual property in the United States; rather, the object is to produce society-wide benefits via the progress of science and useful arts.

Second, we notice that the clause reads that Congress “shall have the power to promote...” and not that Congress “shall promote....” This implies that Congress is under no constitutional obligation to actually exercise this power; it may, at its discretion, allow intellectual property rights to lie unprotected. Contrast this with the treatment of other property rights under the Constitution, particularly in the Third, Fourth, and Fifth Amendments.

Taken together, these insights make it clear that under American law, the right to one's intellectual property is not regarded as a natural, inalienable right as is the right to one's landed property. Rather, intellectual property in the United States is an article of convenience for legislators and the society they represent: to the extent that intellectual property laws are thought to be expedient, they will stay in place, and to the extent that they are not, they can be discarded.

As I say above, this makes the United States unusual. Elsewhere, the individual author is held to be preeminent, with works of authorship thought to embody part of the spirit of the author and the proprietary right meant to be a reward for the author's investment in skill, judgment, and labor to create the work. Thus came the historic battle between the United States and the international community over the necessity of complying with formalities of statute in order for works to gain the protection of copyright law, and the still-raging debate over recognition of moral rights of authors, e.g., the rights of attribution, integrity, and withdrawal.

Consequently, the discussion of intellectual property in the United States has focused on economic concerns, with developments in the law favoring restrictions on sharing– increased terms of protection, additional rights added to the bundle, tighter controls meant to extend those rights into new forms of media, etc. – presumed by Congress to have positive economic effects. However, as the landscape has transitioned away from physical media, the underlying economic reality has changed. The price of goods will approach their marginal cost of production; in a digital environment the marginal cost of producing new copies of content is effectively zero and thus those prices should naturally approach zero. As they do, there will be less and less incentive for content creators to hold closely the exclusive rights of intellectual property – if you are giving away your content, bearing the costs of prosecuting your rights against an infringer who is also giving away your content makes little economic sense – and Congress and other policy leaders may be tempted to strip the law of intellectual property of the protections developed in an earlier technological and economic paradigm.

I argue that Congress should – perhaps not in every single case, but broadly and to a non-trivial extent – resist that temptation. This argument follows from the notion that other nations have it right and the framers of our Constitution were wrong: that intellectual property is not solely a tool of convenience that Congress may use to spur progress in the arts and useful sciences if it so chooses, but that it instead derives naturally from the personhood of the author embodied in its creation. Creators of intellectual property – from the lowliest self-published author to Hollywood studios – invest massively in producing their works and incur huge relative costs in doing so. Further, regardless of whether these creators have any expectation – reasonable or otherwise – of finding a market and deriving pecuniary benefit from their work, they do expect to have at least some level of control over their work: whether and in what form they will publish their work, whether and to what extent others will be allowed to take their work in new directions, whether and in what ways others will be allowed to make profit on the back of their work.

Congress need not fear that the continuation of intellectual property rights in more or less their present form will artificially impede the development of growth in the emerging sharing economy. By the principles of zero marginal cost goods – that functional goods produced without property relations will be superior in quality, and that nonfunctional goods produced without property relations will be superior in distribution – the sharing economy will dominate the proprietary economy so long as the law does not prevent sharing. With simple legal tools or even simpler non-enforcement, the law will be no obstacle, and from there natural market forces will force the reluctant get with the program.

But economics are not the heart of intellectual property. Rather, its heart is found in the spark of creativity of the author, the soul and sweat that she pours into her work. If the author wants to hold on to the fruit of that spark, even in the face of economic forces compelling her otherwise, the law should recognize her natural right to do so.

-- TomLawrence - 20 Jan 2015

This appears to be a combat with a straw man. The victory over an argument for abolition that no one made seems to me to have pretty much prevented any other thinking from going on. Your conclusions otherwise seem to be not at odds with anything already said, but merely a violent and self-deceptive form of agreement. Why don't we ask what the draft would say if there were no parties advocating the destruction of existing rights, but only urging that the promotion of science and the useful arts is better performed prospectively by legislation containing different terms? The granting of monopolies by the State is hardly a neutral condition of mutually beneficial competition, so by the arguments you accept, why should it continue?

(1)For functional goods, production without property relations yields inherently superior goods;

(2) For nonfunctional goods, distribution without property relations yields inherently superior goods.

Accepting the distinction between functional and nonfunctional goods, I have come up with no grounds on which to oppose either of these propositions. The theoretical underpinnings of both are sound, and the real-world demonstrations of both are convincing. Let us take these principles, then, as something akin to a natural law.

The difficulty I am having with this material does not come from a dispute with the principles themselves. Rather, my difficulty stems from another position, expressed by Professor Moglen and others, which I believe has a direct connection to the principle.

Let us consider the following examples.

First, consider the market for word processing software, a quintessential functional good with zero marginal production costs. This market includes costly proprietary software like Microsoft Word, “free” proprietary software like Google Docs, and software produced without property relations like the Apache-licensed OpenOffice? .. For the sake of simplicity, let us assume that these are the only market players. Accepting the first principle, we should expect that the anarchically-produced OpenOffice? will come to dominate the marketplace as it will be better than the proprietary Google Docs, and better and cheaper for users than Microsoft Office. By any economic theory, we should expect to see both Docs and Word should be driven into unprofitability, being unable to compete with OpenOffice? on price or quality. This is the process we have observed already with the dominance of Linux over Microsoft Windows.

Similarly, let us consider the market for music, which we will accept, arguendo, as a nonfunctional good. Here again, we have commercial music giants such as Metallica that would never allow free distribution of their music, artists who give away all of their music for free (I do not know of any such artists, so let us use Radiohead, which has given away a couple of albums, as our example), and artists like A$AP Rocky who fall somewhere in between, often giving away their early music in order to build their audience and then charging for later albums once their brand is established. Here again, artists who charge for their music should either be driven out of the marketplace entirely or forced to change their business models to free distribution to keep up with freely distributing artists, who see their audiences grow larger, quicker, and accordingly are able to command higher ticket prices, sell more merchandise, attract more endorsement deals, and otherwise attract bigger, better direct revenue streams than album sales and royalties.

Accepting the principles of property-free production and distribution, we should expect that no matter what, market forces will lead to the dominance of non-proprietary goods in both the functional and nonfunctional spheres. Proprietary goods will be squeezed out and intellectual property will be obviated naturally. Given this, I argue that it would be an active violation of justice to use the law to abolish intellectual property protections across the board.

Regardless of whether one accepts intellectual property as an intellectually valid form of property (i.e., a form of property one believes would or should exist in the state of nature, or a form that would or should be protected by an ideal government built from scratch), the following is true: Creators of intellectual property – from the lowliest self-published author to Hollywood studios – invest massively in producing their works and incur huge relative costs in doing so. Further, regardless of whether these creators have any expectation – reasonable or otherwise – of finding a market and deriving pecuniary benefit from their work, they do expect to have at least some level of control over their work: whether and in what form they will publish their work, whether and to what extent others will be allowed to take their work in new directions, whether and in what ways others will be allowed to make profit on the back of their work. The labor and resources expended in producing a work of authorship give people a sense of ownership, and that sense of ownership ought to be respected, regardless of whether one is willing to equate it with the ownership of tangible objects.

It is one thing if economic reality conspires to disfavor business strategies predicated on authors controlling their work product; however, for the state to come in and declare that you may not control the fruits of your labor, no matter how badly you might want to. Control over your labor and freedom of choice are prime values, even if the set of rational choices is constrained or forced by economics.

This argument gains more force when we consider that the justice argument opposing intellectual property – that freedom to learn should not be constrained by ability to pay – is obviated by the foregoing economic principles. If free works are inherently better or will inherently enjoy greater distribution, then free works will dominate the market and be available. In light of this availability, the question does not contrast a whole system of property relations with a whole system without property relations. Rather, it contrasts two systems without property relations, one in which authors at the margins who do not desire to give up control of their work get to keep that control, and the other in which they are forced to give it up. Can it truly be said that the marginal system-wide gains of forcing every last author to give up their control outweighs the injustice done to authors holding out for what must be personal, rather than economic, reasons? I am skeptical that it can.

-- TomLawrence - 20 Nov 2014

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