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The Monopolists' Con of Constitutionality - part 1 · Saturday August 08, 2009 by Crosbie Fitch

This is the first of a four part series examining the way in which people who should know better maintain and reinforce the con against the US citizen that copyright and patent are sanctioned by the US Constitution.

As should be increasingly obvious in these days of instantaneous diffusion, the US Constitution is being abusively cited in ever more desperate attempts by the incumbent monopolists to demonstrate a solid foundation for copyright and patent. Naturally, the constitution can do nothing of the sort, so the corporate lackeys who resort to such abuse in pretending otherwise are attempting a con. In this way, it is solely a matter of confidence that anyone is able to persuade their audience that copyright and patent are natural rights of the individual and properly recognised by the US Constitution as deserving of protection by a necessarily empowered government.

Upon inspection there are no grounds for such a proposition. All grounds that are proposed materialise from external motives, such as may be inspired by fiscal prudence, e.g. “Monopolies are socially beneficial sacrifices of liberty – well, they certainly benefit us!”.

If you or your audience want to believe that copyright is not only good, but constitutional, perhaps because your business relies upon copyright or its litigation, then it’s not too difficult to kid yourself or your audience that it is.

Perhaps such devout believers rely upon this deceit so they can sleep soundly despite having financially wrecked the lives of Jammie Thomas, Joel Tenenbaum, and Brittany Kruger? If their persecution of such naïfs for sharing music is sanctioned by the constitution then it is surely just and ethical? On the other hand, if copyright is properly recognised as unconstitutional qua unethical, then will more people be prepared to point out the psychotic Emperor’s lack of robes?

Fortunately, lawyers must take pains to avoid lying, so in reading their allusions to the constitutionality of copyright one can sometimes discern the truth – if one shields one’s eyes from contrary insinuation.

Allow me to introduce you to Ms Dale Cendali, Intellectual Property Partner, Kirkland & Ellis LLP and Adjunct Professor, Harvard Law School. Apparently “She is a recognised leader in intellectual property (IP) litigation, who has been described by Chambers & Partners (US law firm) as ‘one of the best lawyers in the country’.”

Here is an example of her apparent confidence that copyright is sanctioned by the US Constitution:

From Copyright and wrongs an Economist.com debate.

From its inception, the United States has been a society of innovators. Americans place a high value on original thought and expression, and have benefited from innovation both in terms of technological advances and by a culture enriched by creative works. It is no coincidence that the constitution itself, inheriting the notion from protections already existing in the UK, seeks to boost creativity by empowering Congress “[t]o 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” (US Constitution, Art. I, Sect. 8, Cl. 8). The concept underlying current copyright law is elegant in its simplicity: In order to achieve “Progress of Science and the useful Arts”, the law protects the ability of an author to recoup his or her investment in creating a work by granting exclusive rights to exploit that work for a limited time. The creation of films, computer programs and other creative works can be very costly and the possibility of returns risky. But individuals and firms are willing to invest resources in these projects in large part because of the prospect of greater future returns.

We can quickly pass over the insult that the Framers wished to inherit the UK’s monopolies of copyright and patent in the US Constitution. That there was enthusiasm elsewhere for those monopolies to be legislated is unsurprising, but that doesn’t mean the clause was inserted precisely so sanction for those monopolies could be misconstrued.

Notice that Dale doesn’t say that the Constitution protects, but that the law (copyright) protects, and that copyright law protects by granting ‘exclusive rights’. Moreover, note that she doesn’t even attempt to say that these ‘rights’ are granted to protect an author’s exclusive right (how can granted rights protect natural rights?), but that the granted ‘rights’ are granted to protect revenue and achieve progress.

Well, the cat’s out of the bag now.

How can the Constitution specify the securing of ‘rights’ that were granted in legislation years later?

It can’t – those legally granted ‘rights’ weren’t in existence at the time of the Constitution and so couldn’t be recognised by it. The Constitution can’t grant power to secure ‘rights’ that don’t yet exist, and the Constitution certainly can’t grant rights, because rights can’t be granted by definition. It can’t even specify the granting of privileges – even if they may only later be termed ‘legal rights’ or simply ‘rights’.

Ms Dale Cendali is expecting her audience to conflate the modern meaning of the term ‘exclusive rights’ (legally granted ‘rights’ aka privileges) with the term exclusive right as used in the Constitution, which can only refer to the individual’s natural exclusive right to their writings/designs, a right that is imbued in man by nature and to be protected by legislation (via power granted to congress for this purpose), not a monopoly granted by legislation. The Constitution does not empower congress to grant monopolies or any other privilege.

The Constitution specifies the securing of an author’s pre-existing, natural exclusive right. It does not say that the privilege of a monopoly (copyright) should be granted such that it may be mischievously described as a ‘legally granted right to exclude others’ from reproduction of one’s published works – or ‘exclusive right’ for short.

The Constitution refers to the exclusive right that already exists, not to a privilege that is yet be created (and to be given a confusingly similar name).

So Cendali segues from “To promote progress, congress is empowered to secure an author’s exclusive right to their writings” into “To promote progress, congress is empowered to grant authors ‘exclusive rights’ defined as a transferable reproduction/performance monopoly to enable considerable profits to be made by their publishing agents at the expense of US citizens’ liberty.”

Clever eh?

As if to add justification for an unjustified misinterpretation she points out that, with the prospect of considerable profits, monopolies encourage risky investments. Sure, but the constitution said nothing about granting monopolies or the need to provide lucrative rewards to authors or inventors (especially not their agents or investors). That monopolies are lucrative to those to whom they are granted is obvious. The problem is the considerable loss of cultural liberty to US citizens, and the fact that monopolies represent a net cost to the economy. Preventing competition in order that higher prices are enjoyed by favoured parties redistributes wealth. It doesn’t contribute any productivity. On the contrary, there is a net loss in productivity due to tax required for policing. Monopolies also impede technological and cultural progress due to reduced knowledge sharing.

Can Dale insinuate anything in support?

The constitutional wisdom in granting creators exclusive rights in order to encourage innovation has resoundingly proved correct.

It almost sounds as if she’s saying that the constitution wisely granted creators ‘exclusive rights’ doesn’t it? It might sound like that, but she isn’t, and it didn’t.

If the ‘exclusive rights’ were granted some years after the Constitution that can’t represent ‘constitutional wisdom’, i.e. wisdom on the part of the Framers.

The ‘exclusive rights’ are not even the same exclusive right that is referred to by the constitution, but privileges granted by later legislation. She is suggesting that whoever legislated those privileges was ‘constitutionally wise’ – a rather dubious contention (given the Constitution sanctioned no granting of privilege).

It would have been wise of the legislators if they had actually adhered to the wisdom of the constitution and restricted themselves to enacting law that secured an author’s and inventor’s exclusive right, rather than completely ignoring that to instead grant a transferable monopoly for the lucrative exploitation of printers and mass producers – making a considerable sacrifice of each US citizen’s liberty.

Are you still confident that the monopolies of copyright and patent encourage innovation? They certainly encourage publishers and industrialists to obtain and exploit these monopolies, but that’s not the same as innovation.

So, aside from issues of veracity, do you feel Ms Dale Cendali wishes her audience to believe that copyright is constitutional? It seems to me that she does.

She doesn’t go so far as to say it is constitutional, but then if it was, do you doubt she’d be at all hesitant in asserting it?

So, we can conclude that precisely because of Ms Dale Cendali’s clear effort to insinuate that copyright and patent are constitutional, without actually going so far as to state anything to that effect, she recognises that there would be no truth in such a contention.

And ye shall know the truth, and the truth shall make you free.

The privileges of copyright and patent are unconstitutional.

Steve R. said 5235 days ago :

I am in agreement that the copyright maximilists have gone way beyond the constitution. Also, this is the first of four parts, so my comments may be premature.

I trust that you will cover the unfortunate Eldrid V. Ashcroft.

Additionally you may be interested in Tom Bell’s: Unconstitutional Copyrights?

Crosbie Fitch said 5234 days ago :

I will not cover Eldred v Ashcroft. That focuses on ‘limited times’. As far as the natural exclusive right goes, being the right of the individual, its term is also logically bound to the individual, i.e. the span of their natural life.

Similarly, Tom Bell focuses on ‘to promote progress’.

Both of these analyses miss the far more fundamental issue of the exclusive right itself. It is not a state granted monopoly, and so my series focuses on that, and how people persistently insinuate that the monopoly of copyright is the natural exclusive right recognised by the constitution.

Copyright is legislation enacted after the Constitution. It may well have been subsequently portrayed as a means of securing (or helping to secure) the author’s exclusive right, but it does so very poorly, if at all. It is also claimed that it was created to benefit the public by encouraging authors to release their works from the protection of their exclusive right – by providing publishers with a lucrative monopoly that they will pay the author handsomely for. Whether the monopoly benefits the public is covered elsewhere ad nauseum. I suggest that copyright was legislated in spite of the Constitution because it benefitted the press and the interests of the state in controlling the press – and yes, its existence in Britain did inform and inspire many in the states to seek its introduction there. However, those who covet monopoly should not be confused with those who recognise the individual’s natural right to liberty and the need for it to be protected by a strictly limited government.

So, I’m just covering the curious issue of why some prefer to call the ‘progress’ clause the ‘copyright’ clause, and resort to other tactics that they hope lend weight to the idea that copyright is constitutional.

Crosbie Fitch said 5234 days ago :

See Moral Panics and the Copyright Wars on Against Monopoly where Stephan Kinsella critiques William Patry’s stalwart loyalty to his pro-copyright position (despite being depressed by its corruption):

Terrible. Sure, he’s right that, as the Amazon description indicates, “copyright is a utilitarian government program—not a property or moral right.” But why does he think that copyright is not a natural or moral right? Because the Supreme Court has said so! As he wrote here, “In the United States, copyright is not a natural right, since the Supreme Court has said so twice, first in 1834 in Wheaton v. Peters, and then in 1932 in Fox Film Corp. v. Doyal”; see criticism here. Just another legal positivist. So he of course would think that, “As a government program, copyright must be regulated and held accountable to ensure it is serving its public purpose.” Whatever

Copyright must be properly recognised as a privilege, and criticised on that basis. It would be a pity for the insinuation that it is a natural right recognised by the Constitution to transform into an incontrovertibly established fact – though it’s pretty close to this already.



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