Over the last week or so, I've seen a number of folks in the usual crowd of copyright maximalists cheering on a new "paper" put forth by a group hilariously calling itself the Center for Individual Freedom, supposedly trying to establish the "constitutional and historical foundations of copyright protection."
The "paper" (and I use that term loosely) itself does no such thing. It's a one-sided polemic about why copyright is property -- argued by selectively quoting a few historical claims, often out of context, and ignoring everything else. The six page document (quick read) was actually written by three lawyers... who admit that they work for the RIAA. The basic argument is that copyright is a "natural right," and that this idea was well established at the time of the Constitution. The framing, then, is that all the Constitution was really doing was codifying a natural right that all agreed was akin to property, and that this right cannot and should not be diminished or taken away.
To do this, the authors rely, almost exclusively, on some arguments that John Locke made. This is the go to move of copyright maximalists. Because John Locke argued that property rights were established as a result of one's labor, and thus a "natural right", and some of the founders were influenced by John Locke, voila, copyright was meant to be given as a natural right. As the paper notes:
The foundational premise of Locke's theory
is that all people have a natural right of property
in their own bodies. Because people own
their bodies, Locke reasoned that they also
owned the labor of their bodies and, by extension, the fruits of that labor.
When an individual catches a fish in a stream, he has a
right to keep that fish because but-for his efforts,
the fish would not have been caught. For the
same reason, an author has a right to his works
because his efforts made the work possible. Under Locke’s view, "[o]ur
handiwork becomes our property because our hands—and the energy, consciousness, and control that fuel their labor--are our property."
That is, "a
person rightly claims ownership in her works to the extent that her labor
resulted in their existence." If anything, under Locke's theory, intellectual property should be even
more worthy of protection than physical property. Land and natural
resources are pre-existing and finite, and one person's acquisition of a piece
of tangible property may reduce the "common" that is available to others.
Not so with tangible expressions: the field of creative works is infinite, and
one person's expression of an idea does not meaningfully deplete the opportunities available to others; indeed, it expands the size of the "pie" by
providing inspiration to others. Moreover, while tangible property such as
land and chattel is often pre-existing and acquired through mere happenstance of birth, intellectual property flows directly from its creator and is
essentially the "propertization of talent"--that is, "a reward, an empowering
instrument, for the talented upstarts" in a society.
Nearly all of this is misleading or out of context. Or just wrong. The idea that Locke was arguing that mere labor alone creates a property right is just silly. As Stephan Kinsella pointed out years ago
, this argument makes little sense the more you think about it, as Kinsella demonstrates by talking about who owns a loaf of bread:
But creation of the loaf is not the reason why the baker owns it. He owns the loaf because he owned the dough that he baked. He already owned the dough, before any act of "creation"--before he transformed it with his labor. If he owned the dough, then he owns whatever he transforms his property into; the act of creation is an act of transformation that does not generate any new property rights. So creation is not necessary for him to own the resulting baked bread. Likewise, if he used someone else's dough--say, his employer's--then he does not own the loaf, but the owner of the dough does. So creation is not sufficient for ownership.
Creation is not sufficient for ownership. That should be obvious, but for some reason the paper assumes that it must be so.
Oh, and Locke actually had much more mixed feelings on copyright
. As some have pointed out
, back in Locke's time, there was the precursor to copyright, known as The Stationers' Company monopoly
, which more or less later morphed into the Statute of Anne (the basis for much of modern copyright). Locke's opinion on the Stationer's Company Monopoly? Not good at all. He argued vehemently against it, and is widely credited by some for it not being renewed. While he did support some of the ideas that were discussed
for the eventual Statute of Anne, many of his ideas were actually rejected
when that bill came around. As has been noted elsewhere
, the Parliament explicitly rejected
an earlier version of the Statute of Anne that referred to it as a property right (which also made it unlimited), completely changing the text to note that it was for the promotion of learning
The central plank of the 1710 Act was then, and remains, a cultural quid pro quo. Parliament, to encourage "learned Men to compose and write useful Books", provided a guaranteed, if finite, right to print and reprint those works so composed. The legislators were not concerned with the recognition of any pre-existing authorial right, nor were they solely interested in the regulation of the bookseller's market.
And yet, the RIAA laywers make a big stink about Locke's impact on the Statute of Anne. They ignore that many of his ideas were rejected
by Parliament, and instead pretend that he more or less wrote the damn thing.
In the 1690s, Parliament refused to renew
the Stationers’ Company’s printing monopoly, and authors and booksellers in the
newly competitive industry began pressing
for formal protection for their works. Although he strongly opposed the
Stationers’ Company’s monopoly, John Locke himself described literary
publications as “property” and argued in a 1694 letter to Parliament that
formal publishing rights should last for the life of the author plus seventy
In 1710, Parliament enacted the Statute of Anne, which formally
granted authors of existing works a 21-year exclusive publication right
and authors of new works a renewable 14-year exclusive right.
Yes, because during the debate over what to do about this, Locke referred to publishing rights (not copyright
, by the way) as property, these lawyers claim it was a key basis for copyright. Except... they leave out the part where Parliament rejected most of Locke's suggestions and went in a different direction. It's the details like this that matter.
Furthermore, much of the argument in the paper is that Locke believe copyright is some sort of "natural right," rather than a utilitarian issue (i.e., for the betterment of society). And yet, when you look at all of Locke's comments on the matter, even when he's making what appears to be a natural rights argument, it's really
a utilitarian argument in disguise. The RIAA lawyers accidentally make that very point when they argue that Locke would have supported copyright more than traditional property (while ignoring the fact that he quite obviously did not) because it would "increase the pie." But, of course, increasing the pie is a utilitarian argument. Which is exactly what Locke was making when it came to such works, contrary to the claims of the authors of the paper.
The paper then makes the further leap that since the US's Copyright Clause had similarities to the Statute of Anne, that the founders also believed wholeheartedly in the (already not really accurate) idea that he thought copyright was property. Derek Bambauer, in talking about just how inaccurate and ridiculous the RIAA paper is
, reminds us of Dotan Oliar's incredibly detailed paper on the origins of the US Copyright Clause
, which should be required reading for anyone arguing about this clause and what it actually means. As that paper shows in much more detail than anything the RIAA lawyers wrote, the RIAA's claims are, well, bunk. Oliar looks at the historical record of the various proposals put forth for the copyright clause, and notes that Congress explicitly rejected the ones that were more based on a "natural rights" or "property rights" view, and like the English Parliament before them, chose instead to support a limited bill for the purpose of promoting progress, rather than any sort of property right.
Specifically, the study of the Convention’s record provides three indications
that the Framers intended the Progress Clause as a limitation on Congress’s
intellectual property power. First, Madison and Pinckney’s initial proposals to
vest patent and copyright powers in Congress were plenary and did not include
language relating to the promotion of progress in science and useful arts. Had the Framers been content with such plenary patent and copyright powers, they
would have likely adopted them as proposed. The Framers’ choice not to adopt
the plenary proposals, but rather to subject their exercise to specific ends, tends
to prove that the Progress Clause was added as a limitation.
That paper, unlike the RIAA paper, is quite detailed and thorough (and actually acknowledges the views of those who have argued otherwise, before explaining why the evidence suggests they're wrong). Reading through the details there, you're left with a pretty convincing case that the majority of framers of the Constitution were not looking to secure some sort of "natural right" or "property right," but to explicitly to use the "promote the progress" clause to limit
Congress' ability to do damage with copyrights and patents. Yes, there were some
who viewed copyright as a natural rights issue, but it is clearly not the majority, or else they wouldn't have rejected putting such language forward. Besides, the fact that in a large group of politicians, you can find a few to make a crazy argument does not
mean that the entire body agreed with those views. Can you imagine what these lawyers must think of Congress? One Rep suggests raising taxes and they must think that, clearly, the entire country supports raising taxes. Because that seems to be the only way their argument in this paper makes any sense.
The RIAA paper also brings up the UN's declaration on human rights, arguing that its Article 27 shows that it is a widespread belief that copyright is a natural property right. Except, as we've discussed in great detail
, this is not what the declaration on human rights actually says. Not only does that same clause argue that "everyone has the right to freely participate in the cultural life of the community, to enjoy the arts," but official commentary and associated declarations also, explicitly, note that the rights being discussed do not equate to copyright
and should not
be equated with copyright. Not surprisingly, the RIAA paper ignores all of that.
It also ignores some key US cases, which flatly reject this idea, including the 1834 decision in Wheaton v. Peters
-- considered the first real copyright case in the Supreme Court, in which the Supreme Court comes down pretty firmly against the idea of copyright as a natural right, and establishes that it is a creature purely of statute. In fact, the court there refers back to the Statute of Anne as well, and notes that there, too, they have rejected the natural rights argument for copyright.
No such right at the common law had been recognized in England, when the colony of Penn was organized. Long afterwards, literary property became a subject of controversy, but the question was involved in great doubt and perplexity; and a little more than a century ago, it was decided by the highest judicial court in England, that the right of authors could not be asserted at common law, but under the statute. The statute of Anne was passed in 1710.
The court then went much further in noting that the Constitution explicitly presents limits on copyright, and there is no evidence that it was establishing the recognition of a natural right:
That congress, in passing the act of 1790, did not legislate in reference to existing rights, appears clear, from the provision that the author, &c. "shall have the sole right and liberty of printing," &c. Now if this exclusive right existed at common law, and congress were about to adopt legislative provisions for its protection, would they have used this language? Could they have deemed it necessary to vest a right already vested. Such a presumption is refuted by the words above quoted, and their force is not lessened by any other part of the act.
Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it. This seems to be the clear import of the law, connected with the circumstances under which it was enacted.
This case is widely known to copyright scholars. It seems rather stunning that these RIAA lawyers (or the CFIF, which published the paper) would be ignorant of it. Thus, it's not difficult to conclude from all of this that the authors of the paper did not undertake a scholarly look at whether or not copyright was long viewed as a natural right and thus, as property, but rather that they cherry picked a few quotes out of context, and then pretended those quotes had much more impact than they really did.