 This is Stephan Kinsella, June 3rd, 2013. This is the Kinsella on Liberty Podcast. Today I wanted to talk briefly about one argument against modern patent copyright, trademark, and even trade secret or intellectual property, at least in the US. And that is the argument that all four of these laws are unconstitutional. Before I get into it, I have a long blog post about this, which I'll link to in the notes. But one reason to make this argument is that one argument for IP by proponents is that if you argue against IP, they'll say, well, it's in the Constitution. And there are several problems with that general argument. One, it's not all in the Constitution, as I'll get to in a minute. Trademark is not in there, for example. And second, it's just an appeal to authority. Even if it is in the Constitution, it doesn't make it legitimate or justified. And third, the Constitution authorizes Congress to enact patent and copyright law, arguably, but it doesn't require them to. Basically, every argument in favor of IP based upon the fact that there's some constitutional language about it is either an appeal to authority or is incomplete or fails to recognize that there's a grant but not a requirement. And I guess fourth, you could say that the Constitution does not regard, say, patent and copyright as rights, as property rights or as natural rights, but it's mere, like, temporary policy tools to advance some goal. So it's more like a regulation or intervention in the market. It shouldn't be viewed by the Constitution as a property right. But anyway, let's ask the question, is patent and copyright or are patent and copyright and trademark and trade secret laws that are federal laws in the U.S. are they constitutional? And I would say there's a few arguments for why they are not. First, let's take trademark and trade secret. There's a clause in the Constitution which authorizes Congress to grant to authors and inventors for limited time and exclusive right to their inventions and writings. But there's no authorization for things like what trademark and trade secret cover. In fact, the Lanham Act, which covers trademark does not abolish state trademark laws, doesn't preempt them, doesn't purport to, and only covers trademarks that are in use in interstate commerce. So they're appealing to the interstate commerce clause and a dubious, very broad interpretation of that clause which the government has used over the years to, the federal government has used to enact laws that are not specifically authorized in the grant of powers in Article I, Section 8 of the Constitution. I'm out for my morning walk, by the way, which is why I'm huffing and puffing a little bit. In any case, so they rely upon the interstate commerce clause. And even if it's broader than we would like, it's clearly not broad enough to authorize this. And the same thing for federal aspects of trade secret law, which doesn't purport to regulate the whole field, but only certain sets of trade secrets. So those are both unconstitutional because there's just no authorized power and the appeal to interstate commerce as a grant of power is kind of ridiculously overbroad. So that's one argument against those. Now for patent and copyright, which are authorized in the Constitution, first thing we have to recognize is that the preamble to the clause says that to promote the progress of science in the arts. And by the way, science refers to the copyright part because science means the knowledge, science is the arts basically is what we think of now, the liberal arts, the creations of the intellect of the mind, plays, novels, paintings, whatever. And the arts, the useful arts in that clause refers to what we think of as inventions now covered by patents because it was like artisans or useful artifacts that we make. We use those terms in sort of a reverse way now. But anyway, in any case, the clause says that the purpose of this grant of power is to promote the progress of science in the arts. And as a matter of fact, in the last 200 and so years since the Constitution was enacted, 1789, and the patent and copyright laws were quickly drafted right after that, there has been no evidence that these laws actually do promote the progress of science in the arts. In fact, there's tons of empirical studies and evidence and reasoning that indicate that these laws severely distort and even retard innovation and the culture. So that's another argument why the actual patent and copyright acts as written or unconstitutional because they do not fulfill the purpose of the power granted to Congress. So that's another argument. Yet another one some people argue is that these rights have to be for limited terms. And at least in the case of copyright, it was originally 14 years renewable by another 14 if you actively sought it. So that's up to 28 years max. And by the way, the 14 year term is a totally arbitrary number which came about because it was the term of two consecutive 7 year apprenticeships. So the idea was that these things are rooted in mercantilism and protectionism from England and Europe. The idea is that if you give someone a patent on their production process or their craft, as long as they have a monopoly for time to train two apprentices in it, that should be good enough to insulate them from competition or something like that. So the original 14 years came from that. But in any case, copyrights initially were 28 years max, but they'd been successively extended over the years at the behest of lobbying by companies like Disney and others to the point where copyrights last well over 100 years now in most cases. So you could argue that the propensity of Congress to keep extending these terms and even to put works back into copyright that were public domain at one point violates that limitation that the grant has to be for a limited term. I mean, it looks like it's basically infinite now, or certainly extending an existing term doesn't mean it was limited in the first place. So that's another argument you could make. But I think there's two or three stronger arguments which I rarely, in fact, never hear made. And that is this. There is a principle in a case called a canon, C-A-N-O-N, a canon of a statutory construction or constitutional construction, which is that if you have two statutes or two constitutional provisions that are in conflict, then if they're both valid, you have to try to balance them out or make them somehow compatible with each other if you can. That's what the judges have to do. But if one is drafted later than the other, then that one takes priority. That's why we can repeal statutes or pass new ones. That's why constitutional provisions can repeal others. So, for example, the U.S. Constitution was amended to prohibit alcohol during prohibition, and then years later another amendment was enacted to repeal prohibition. So why do we not have prohibition now? It's because the second, the later past amendment came after the first one, and therefore it's the one that now controls. So if you take that into account and recognize that the Constitution was enacted in 1789 with the copyright and patent clause, but that the Bill of Rights was added two years later in 1791, then if there's a conflict between a provision of the Bill of Rights, and the 1789 Constitution, then the Bill of Rights has to prevail. And I think there's a clear conflict. In fact, the courts have recognized that patent, that copyright law, or the Copyright Act passed in accordance with the copyright clause, does hinder free speech and freedom of the press, because it prevents you from publishing what you want in some cases and saying what you want, and forcing yourself in the way that you want. Which is, if it was, think of it this way, if there had been no patent clause or patent act, and there was a First Amendment and Congress just enacted a patent law, now it would, I mean, sorry, copyright law, now it would be unconstitutional because there's no authorized power for it, but it would also be unconstitutional because it would be an undue burden on free speech. There's almost no doubt about that. But because the copyright clause is in the Constitution, it doesn't feel like they have to try to balance these things. So they say there's a tension between free speech and the copyright interest, and the courts try to balance these things. Whereas, in almost every other context, they don't balance it because they regard the freedom of speech right as a fundamental right that's very important that can only be restricted by a compelling reason. So, instead of trying to balance these rights, it should be recognized that the First Amendment came after, and to the extent that there is an inconsistency between copyright and free speech, copyright and the First Amendment, the First Amendment has to prevail and the copyright law has to fall. And I actually think this is a very strong argument. I think the courts fudge it a little when they've looked at this issue in the past, and they sort of treat the Bill of Rights as being roughly contemporaneous with the Constitution because it was done just two years later, and also because the Constitution was ratified on sort of the implicit promise, or not implicit, but the sort of gentleman's agreement, the kind of handshake promise that there would be a Bill of Rights added soon. But this is, of course, not legally binding and not really the way that statutory construction works. In fact, two years is not the same as zero. 1791 is not the same as 1789. I mean, you know the Constitution was ratified in 1789, and it superseded the Articles of Profitivation, which had existed just in the previous decade. So there's no reason to believe that the two-year period makes no difference, that you should balance them, that you should treat the Bill of Rights as paramount to any earlier provision of the Constitution. And by the way, this argument extends also to trademark and patent and even trade secret, especially patent. There are clear cases where patent is used to censor free speech as well as trademark. Threatening letters are sent, large companies bully people into not using certain words in my blog post about this, I'll list some examples. And even trade secret to some extent. But I think you could easily argue that trademark, patent, and copyright, especially copyright, clearly come into conflict with the First Amendment and should be abolished on those grounds. And copyright also violates, I believe, the Fourth Amendment and the Fifth Amendment and the Eighth Amendment, which are also all in the Bill of Rights and all came two years later. And to the extent there's an incompatibility, then, of course, the earlier clause, which is the copyright clause, has to fall. And so the Fourth Amendment protects people's right to be secure in their papers and property homes. But of course, we see raids being done all the time, invasions of people's property rights and interests in the name of copyright, bills being proposed all the time that would ratchet this up, SISPA, TEPASOPA, et cetera. Think of just Chem.com, Chem.com's home being raided in New Zealand. Now that's not covered in the U.S., but still things like that happen here, too. Factories are raided for counterfeiting software, et cetera. I think that's a clear violation of the Fourth Amendment. The Fifth Amendment has due process. And of course, you have tons of measures. You have automatic statutory penalties for copyright breach. You have three strikes in your out, or I guess the six strikes in your out laws or provisions being done by the ISPs, but sort of at the arm twisting of the government. And that's basically not the same type of due process that is required by the Fifth Amendment, et cetera. So you could argue that at least copyright violates due process rights as well. And I think it also clearly violates the Eighth Amendment, which prohibits unjust or excessive fines and too harsh punishment for crimes. And copyright has the statutory penalties, which are clearly, I mean, hundreds or thousands of times greater than any possible measure of real damages. You know, $150,000 per active infringement. There's been a study by a John Tehranian who says that the typical modern internet user who just engages in regular activities, not even a serious bit torrenting and piracy of movies, just emailing things to people, cutting and pasting, sharing things online, is potentially liable for up to $4.5 billion a year of copyright damages because of these statutory penalties. So the current Copyright Act has statutory penalties, and it also has criminal penalties, which implicates the cruel and unusual punishment part of the Eighth Amendment. So I think a really good case could be made that the penalties imposed by copyright law are clearly a violation of the Eighth Amendment in terms of excessive fines and also cruel and unusual punishment. So for all these reasons, I think that the current Copyright Act and the current Patent Act and the Lanham Act for trademark and federal laws regarding trade secrets are all unconstitutional. Any questions about this? Feel free to post them on the blog. Thanks.