
What everyone in the SOPA debate is missing: IP is not a fundamental right - lisper
http://rondam.blogspot.com/2012/01/what-everyone-in-sopa-debate-is-missing.html
======
grellas
In the modern world, "property" may be tangible or intangible, as the law may
recognize it.

Law may take all sorts of forms. In the U.S., it may take the form of a
federal constitution or a state constitution, or of a federal statute or a
state statute, or of a federal administrative regulation or a state
administrative regulation, or of a federal court decision or a state court
decision.

For example, with patents, you have a constitutional provision that empowers
the federal legislative branch to authorize grants of limited patent
monopolies, you have federal statutes dating back to 1792 that implement that
authority by conferring rights on inventors to apply for and obtain patents,
you have a regulatory framework under the USPTO that sets out a framework for
evaluating what is or is not patentable, and you have federal courts that
adjudicate disputes affecting the enforcement of patent rights. One can argue
over whether patent grants are "property" or not but this is really more a
philosophical argument than a legal one. Those who oppose patents
philosophically will argue that patents are nothing more than monopoly grants
that cannot be said to have equal dignity with tangible forms of property and
that are therefore not worthy of the label "property." In this view, the
"property" label has merely been hijacked by those who seek to unfairly skew
the debate over whether patent monopolies should ever be granted in the first
place. Yet, while this sort of discussion frames the philosophical debate, the
law gives patent holders a full complement of rights that confer all the
attributes of property: under indisputable governing law today, such rights
can be owned exclusively by someone to the exclusion of all others, they can
be licensed to others by the rights holder via a license in exchange for value
given (fees or royalties, one-time or recurring) or otherwise, either
exclusively or non-exclusively, they can be assigned, transferred, or sold for
valuable consideration, they can be passed by inheritance in the case of
individuals or sold out of bankruptcy court in the case of any holder, and
each successive buyer of the rights has valuable, exclusive rights that
certainly resemble "property" whatever the philosophical arguments pro or con
in using that label. When the Nortel patents sell for several billion dollars
on auction, or when Google buys Motorola for many billions of dollars when the
main asset is its patent portfolio, the commercial players are buying valuable
intangible assets, i.e., bundles of legal rights that can be possessed, used,
improved upon, bought, sold, sued upon, and legally enforced to the exclusion
of others. In every functional sense, that is "property" whether it is
ultimately some fundamental right or not in the philosophical sense.

The same goes for copyright, which protects tangible forms of creative
expression, whether writings, films, compositions, software code, or many
other items. As with patents, the rights associated with legal protections of
such creative expressions can have huge value and such rights can be "owned"
by a specific holder to the exclusion of all others, can be licensed, sold,
gifted, passed by will, etc. in much the same manner as can tangible forms of
property. Such rights, then, in a legal functional sense, have all the
attributes of "property" whatever they may be in a fundamental, philosophical
sense.

The same goes for trademarks - a form of intangible right by which the law
protects a merchant's right to use marks or symbols to identify the origin of
goods or services so that others cannot fraudulently pass off their goods or
services as those of another. Unlike patents and copyrights, trademarks have
their origin in judicial decisions by which the courts decided to grant forms
of "property" protection to protectible marks created by merchants while
selling their goods or services in commerce. Later, federal statutes and
regulatory structures were set up to facilitate more efficient registration of
such marks. The result, though, is the same as in the case of patents and
copyrights: trademark rights can be bought and sold, licensed, sued upon for
enforcement, etc. in all the ways that tangible forms of property can be and
in this legal, functional sense they are "property" as much as anything else
can be called that.

So too trade secret rights are ascribed to commercial information that is both
proprietary (i.e., "owned" by someone) and confidential and such rights
similarly can be sold, etc., as in asset sales or stock sales by which entire
companies are acquired.

At every level of law (federal and state constitutions, statutes, regulatory
bodies, and courts), the foregoing forms of intangible rights are recognized
and protected as "property." In the legal sense, then, IP is indisputably
treated as "property" whether or not it is "fundamental."

SOPA is illegitimate not because copyrights are illegitimate by nature but
because it seeks to take a reasonable enforcement scheme relating to
copyrights across the web and turn it into a bastardized version that is
grossly unfair and highly destructive. One can argue that copyrights are
illegitimate by nature but that is a philosophical argument and not a legal
one. Legally, copyrights have consistently been enforced in the U.S. since the
adoption of the federal constitution. Are they always legitimately enforced?
As a matter of policy, they have not been, in my view. The copyright
extensions, the grabbing of public domain materials to put them back in
copyright, etc. have been products of grotesque lobbying efforts and cravenly
legislative efforts that serve no proper purpose other than to favor a
privileged few in efforts that clearly damage the broader society (this is
another way of saying they don't serve the legitimate purposes of copyright in
the first place). That said, however, the core of copyright has a long and
well-recognized place in American law and (I believe) broad significant
support from the many people who believe that creative efforts should not be
treated as common property but should be protected (within limits) for the
benefit of their creators.

It thus seems to me irrelevant to say that IP is not a "fundamental" right (I
would agree that IP rights are not fundamental in the constitutional sense).
Yes, Congress could constitutionally act to repeal the implementing statutes.
But so what? Copyright has been consistently implemented and enforced in the
U.S. since the beginning of the nation and there is every reason to believe
that it will continue to be protected as "property" in the sense I describe
above for many years to come. Copyright may not be "fundamental" in the
constitutional sense but it is deeply entrenched in our nation and (in my
view) continues to have strong support among the broader public. One can
support it while adamantly opposing SOPA. The two should not be confused.

~~~
lisper
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.

~~~
sgoranson
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.

~~~
ctdonath
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.

------
secretwhistle
I've always thought this is one of the more brilliant quotes concerning
intellectual property rights/copyright, in response to those who feel that
they "deserve" or are somehow entitled to the protection of IP rights:

"Wise assessment of copyright policy should have nothing to do with how you
feel about the person or entity who holds the right at any particular time,
because copyright policy is not about identifying wonderful and meritorious
people and ensuring—certainly not as an end in itself, anyway—that their
income is proportioned to their intrinsic moral desert—or lack thereof. We are
all the massive beneficiaries of millennia of accumulated human scientific
knowledge and cultural output, and not one of us did anything do deserve a jot
of it. We’re all just extremely lucky not to have been born cavemen. The
greatest creative genius alive would be hard pressed to create a smiley faced
smeared in dung on a tree trunk without that huge and completely undeserved
inheritance.

So banish the word “deserve” from your mind when you think about copyright.
Nobody “deserves” a goddamn thing. (I say this, for what it’s worth, as
someone who makes his living entirely through the production of “intellectual
property.”) The only—the only—relevant question is whether a marginal
restriction on the general ability to use information incentivizes enough
additional information production over the long run to justify denying that
marginal use to every other human being on the planet, whether for simple
consumption or further creation."

<http://www.juliansanchez.com/2011/03/30/4457/>

~~~
throwaway64
This point cannot be stressed enough, ideas owe _everything_ to that which
comes before it, acting like somebody brilliantly creates in a bubble without
outside inspiration and help, therefore deserves to take away all the reward
is toxic.

Its the tragedy of the commons at an idea level really.

------
ndefinite
Kinsella, a legal professional in the area of IP in the US, covers the legal
and historical context surrounding IP and comes to similar conclusions. In
short, he concludes, you cannot have Intellectual Property rights without
restricting someone else's Physical Property rights; IP is fundamentally at
odds with Physical Property rights.

True to form, his book is available for free in digital formats:
[http://mises.org/resources/3582/Against-Intellectual-
Propert...](http://mises.org/resources/3582/Against-Intellectual-Property)

And audio: [http://blog.mises.org/11717/against-intellectual-property-
au...](http://blog.mises.org/11717/against-intellectual-property-audiobook-
version/)

EDIT: clarified that Kinsella is a lawyer and knows this subject well

~~~
liuliu
It reminds me the Monsanto Canada Inc. v. Schmeiser case, in which, the IP on
GMOs is clearly at odds with the land property rights of the owner.

------
teamonkey
Article 27 of the Universal Declaration of Human Rights

    
    
       (1) Everyone has the right freely to participate in the cultural life
           of the community, to enjoy the arts and to share in scientific
           advancement and its benefits.
       (2) Everyone has the right to the protection of the moral and material
           interests resulting from any scientific, literary or artistic
           production of which he is the author.
    

[http://en.wikipedia.org/wiki/Universal_Declaration_of_Human_...](http://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights#Article_27)

~~~
seagreen
Please forgive me if I'm missing something, but doesn't Article 29, Section 3
make the Universal Declaration of Human Rights kind of a joke? The right to
enjoy the arts doesn't really have teeth if the UN can just say it's contrary
to its principles.

<http://www.un.org/en/documents/udhr/> Article 29, Section 3 of the Universal
Declaration of Human Rights: "These rights and freedoms may in no case be
exercised contrary to the purposes and principles of the United Nations."

~~~
teamonkey
I think for context the full article needs to be posted.

    
    
       (1) Everyone has duties to the community in which alone the free
           and full development of his personality is possible.
       (2) In the exercise of his rights and freedoms, everyone shall be
           subject only to such limitations as are determined by law
           solely for the purpose of securing due recognition and
           respect for the rights and freedoms of others and of meeting
           the just requirements of morality, public order and the
           general welfare in a democratic society.
       (3) These rights and freedoms may in no case be exercised contrary
           to the purposes and principles of the United Nations.
    

The purposes and principles are defined in the preamble of the declaration.

    
    
       PREAMBLE
    
       Whereas recognition of the inherent dignity and of the equal
       and
       inalienable rights of all members of the human family is the
       foundation of freedom, justice and peace in the world,
       
       Whereas disregard and contempt for human rights have resulted
       in barbarous acts which have outraged the conscience of mankind,
       and the advent of a world in which human beings shall enjoy
       freedom of speech and belief and freedom from fear and want
       has been proclaimed as the highest aspiration of the common
       people,
       
       Whereas it is essential, if man is not to be compelled to have
       recourse, as a last resort, to rebellion against tyranny and
       oppression, that human rights should be protected by the rule of
       law,
       
       Whereas it is essential to promote the development of friendly
       relations between nations,
       
       Whereas the peoples of the United Nations have in the Charter
       reaffirmed their faith in fundamental human rights, in the
       dignity and worth of the human person and in the equal rights
       of men and women and have determined to promote social progress
       and better standards of life in larger freedom,
       
       Whereas Member States have pledged themselves to achieve, in
       co-operation with the United Nations, the promotion of 
       universal respect for and observance of human rights and 
       fundamental freedoms,
       
       Whereas a common understanding of these rights and freedoms
       is of the greatest importance for the full realization of this
       pledge,

~~~
seagreen
Gotchya, so you're saying that the 'purposes and principles of the United
Nations' is being used as a technical term referencing the rest of the
document, and doesn't depend on what the organization of the UN wants at any
specific moment.

------
bediger
I agree that "Intellectual Property" isn't property per se.

It's just too easy to re-invent a particular bit of "IP". I mean, I've done
some of those on-line "C Programming Interview Test Questions", and come up
with something _identical_ to the given answer, except for choice of variable
names.

Independent invention just ruins "IP" as property.

~~~
kbutler
Independent creation only applies to copyright. If I independently write the
same code as you, we both have copyright on it.

Patents exclude independent invention. If we both invent the same thing and I
have the patent, you cannot use your invention.

Trademarks allow independent creation in separate geographic areas, but a pre-
existing use can exclude an independent creation.

This is one of the many reasons that "Intellectual Property" is a misnomer -
the differences between copyrights and patents and trademarks are probably
larger than the similarities.

~~~
bediger
I agree with you on the distinction of copyright and patent with respect to
independent invention. But that's just a human-made distinction, in the USA.
Whoever wrote the laws didn't get independent invention enacted in patents.

I also agree with your reason for "IP" as a misnomer.

I wanted to speak in a general or philosophical sense. not in a legal,
specific sense. The internally-inconsistent concept of "Intellectual Property"
founders on the rock of independent invention, if you reason from first
principles, rather than attempting to propagandize your way through to some
kind of state-enforced monopoly.

------
loup-vaillant
Edit: I see that the following comment may invalidate mine.
<http://news.ycombinator.com/item?id=3463292>

Minor point:

> _Congress is constrained to grant this right only in service of a specific
> purpose. namely, to promote the Progress of Science and useful Arts, and
> only "for limited times"._

This is not exactly what I read it. I understood that the congress can grant
monopolies to promote Arts and Science. Nothing more, nothing less. It doesn't
explicitly forbid the congress to use those monopolies for other purposes. Nor
does it say anything about the case where granting monopolies doesn't promote
Art and Science at all, by the way.

Now if it can be established that such monopolies hinders other rights
described in the constitution, then you are correct: they can only be used to
promote Art and Science. And if we could further establish that those
monopolies _do not_ actually promote Art and Science, then it may be
unconstitutional to use them at all.

~~~
lisper
> It doesn't explicitly forbid the congress to use those monopolies for other
> purposes.

What forbids Congress to use those monopoly grants for other purposes is the
doctrine of enumerated powers.

~~~
anamax
> What forbids Congress to use those monopoly grants for other purposes is the
> doctrine of enumerated powers.

Except that said doctrine is mostly dead, thanks to the commerce clause, an
expansive definition of "interstate", and "promote the general welfare".

~~~
tomjen3
What? The Constitution gives the government the right to legislate to promote
the general welfare?

So they could compel people, with the treat of prison time, to exercise and
eat healthy?

------
noonespecial
Every time I see the term, I can't help but imagine Mike Myers, on the verge
of being verklempt suggesting that its neither "intellectual", nor "property"
and then instructing us to talk amongst ourselves.

------
dantheman
Instead of calling intellectual property we should refer to it as intellectual
monopoly since that is really what its. It restricts what you can do with your
own property.

~~~
liuliu
Monopoly can be more restrictive actually. For example, if it is only a
monopoly, the institution can grant the monopoly but restrict patent
transfer/sale. Consider that most patent trolling companies are using patents
they acquired, it may be a good thing. But as long as the current system setup
goes, it is full property rights you have over your intellectual "product"
(i.e. right to use, transfer, exclude and destroy)

~~~
kbutler
Actually, copyright and patent exclude the right to destroy.

A patent must be filed & public to be granted.

A copyright must be registered to file suit.

To allow destruction would violate the very purpose of patent/copyright.

~~~
Natsu
> A copyright must be registered to file suit.

Nope! Not in the USA, anyhow. If you sue without registering, all it does is
make statutory damages unavailable, it doesn't block you from filling suit.
Also, you can register any time before filing suit, losing only your
presumption of validity in certain cases. That said, both of those things are
highly desirable, so it would be pretty silly to sue without taking care of
those matters first.

That said, get a lawyer if you ever have more than an academic interest in
this, because there are always weird edge cases when dealing with the law.

~~~
kbutler
<http://www.copyright.gov/fls/sl09.pdf> states:

...the Copyright Office must have acted on your application before you can
file a suit for copyright infringement, and certain remedies, such as
statutory damages and attorney’s fees, are available only for acts of
infringement that occurred after the effective date of registration.

~~~
Natsu
Hmm, you're right. I got confused somewhere.

[http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/...](http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter0/0-d.html)

------
grannyg00se
Looking into the original intent of the constitution and imagining the
emotions of those involved with its drafting leaves a sense of fantastic
optimism, intelligence, and idyllic hope. It's a beautiful piece of Ameprican
history that I always take the time to read into when it comes up. I'm glad it
was brought up in this context.

------
rmc
For the record, the Charter of Fundamental Rights of the European Union (which
is mostly law in most EU countries), does, unfortunately, state (in Article
17.2):

> Intellectual property shall be protected.

It's unfortunate that, unlike the US Consitution, there is no explicit mention
of purpose, limited time, etc.

------
bcn
When the discussion of rights comes up, I think that George Carlin has some
wise words on the subject.

<http://www.youtube.com/watch?v=m9-R8T1SuG4>

"...Either we have unlimited rights, or we have no rights at all." -George
Carlin

------
feralchimp
How does this distinction reframe the SOPA debate?

~~~
lisper
The current debate is framed by the presumption that "intellectual property"
is a fundamental right that must be protected, and the disagreement is only
over the means by which this is done and the collateral damage that results.
Questioning the premise of "intellectual property" (and, by extension, "online
piracy") makes the position of SOPA's supporters less tenable.

~~~
feralchimp
I was hoping for an explanation of how the current arguments draw power from
the distinction between 'fundamental' vs. 'government granted' rights. Simply
restating that "the debate is framed that way" provides no such explanation.

The position of SOPA's supporters is "hey government, there are people
stealing our work on a massive scale; fucking do something about it." The
actual enforcement mechanisms in the bill have taken center stage in the
debate because that position statement is credible (and obviously so).

I did not hear the author's post as questioning authorship as a concept, or
the fact that U.S. law recognizes authorship as an activity which confers upon
the author legal rights (or are we calling all of those 'privileges' now?)
that are not granted to everyone else.

~~~
lisper
(Note: I am the author.)

Here's an analogy: imagine a time before the civil war when slave owners go to
Congress to demand draconian measures be enacted to find and repatriate
runaway slaves, i.e. "Hey government, people are stealing our property,
fucking do something about it" as you say. One can argue against such measures
on all sorts of pragmatic and legal grounds, but all of those arguments are
strengthened if one questions the underlying premise that humans can
legitimately be considered property.

Likewise, all of the pragmatic and legal arguments against SOPA are
strengthened if one does not tacitly accept the premise that intellectual
property has the same legal standing as other kinds of property.

~~~
feralchimp
Thanks, I think I now understand (better, at least) where your original post
was coming from.

So now that we're not "tacitly" accepting that IP has "the same" legal
foundations qua other properties like cars and laptops, do you also intend to
non-tacitly reject the claim that "online piracy" is a thing that subjects
content producers to harm?

Because it seems to me that if you agree there is harm at all, we jump to a
debate where we're arguing (I think) whether the Extent of the harm is such
that the Proposed Enforcement Mechanisms and Penalties are a legitimate fit.

My impression of the SOPA hearing was that's pretty much where we are today.
e.g. Google's recommendation to "follow the money" was an attempt to fit an
enforcement mechanism to illegitimate financial gain by parties other than the
content owner.

~~~
lisper
> do you also intend to non-tacitly reject the claim that "online piracy" is a
> thing that subjects content producers to harm?

I would say that I would examine this claim under the new, more correct
perspective rather than reject it. "Harm" is a relative notion. The baseline
state against which the situation is be measured is that all information by
default should be in the public domain. The gains that authors get from
copyrights are a _grant_ , not an entitlement, to encourage them to produce.
So the "harm" is that the grant is (perhaps) smaller than it would by under a
more aggressive enforcement regime.

The real test ought to be: is the grant large enough to serve the purpose,
i.e. to encourage people to produce creative works? The answer at the moment
seems to be manifestly that it is. I would challenge you to find even a single
example of a creative work that might have been produced but wasn't because of
fear of piracy.

~~~
feralchimp
I strongly agree that harm is relative, and that the relative harm of
infringement must be balanced against the potential harms of any enforcement
mechanism (with significant room for error on the side of under-enforcement).

I strongly object to the idea that IP rights are only real to the extent that
they are a) granted by the state and b) encourage additional creative effort.
Utilitarianism is a great model for a democratic society to use when encoding
things into legislation, but isn't a great "be all" for ethical theory or
ontology.

Your test and request are problematic. If there is a creative work that might
have been produced but wasn't, for the reason you'd like me to somehow cite
evidence for, by what search method (other than knowledge of my own personal
creative endeavors) should I seek out such an example? And if I pluck from my
own experience, what would constitute evidence that the actual reasons for
non-production are what I claim them to be?

I would bet there are thousands of bedroom-class electronic music producers
who never devote a ton of effort to their talents because of the rate at which
music is pirated. The number of hours it takes to become passable at
production is quite large, even with great tools. And even if they become
accomplished, they have no great hope of turning that accomplishment into gigs
or recordings that pay a living wage, precisely because piracy became so
rampant that people now expect new artists to give away their first EP-worth
for free or under a "pay what you want" scheme.

The world has decided that the fruit of those first 1000-4000 hours shouldn't
cost anything. You're telling me that doesn't have a chilling effect on people
deciding whether or not to spend that kind of time?

"But see," I imagine you saying, "Now we only get artists who were willing to
do Whatever It Takes to become great!" Yeah well, a lot of those folks suck
compared to some other guy who had a family and a mortgage to think about;
you'll just never hear that guy.

~~~
lisper
> I strongly object to the idea that IP rights are only real to the extent
> that they are a) granted by the state and b) encourage additional creative
> effort.

Then you'll have to amend the Constitution. Or you could try to make the
argument that the 1st amendment supersedes the Article 2 authority to
establish copyright. Some people are doing that, but I'm pretty sure they're
going to lose.

> If there is a creative work that might have been produced but wasn't, for
> the reason you'd like me to somehow cite evidence for, by what search method
> (other than knowledge of my own personal creative endeavors) should I seek
> out such an example?

By the same methodology that you use to do any market research: ask people in
the industry. There is ample precedent for this sort of thing. For example,
the production of small general aviation aircraft more or less ceased during
the 80's and 90's. It was pretty straightforward to show that the reason this
happened was because of liability laws. These laws were changed in 1994, and
now the production of light aircraft resumed.

I don't see an analogous shortage of movies. Quite the opposite: there seems
to be an overwhelming glut on the market. The Sundance Film Festival got 8000
submissions for 100 openings. There's so much new music coming out that it's a
full time job to keep up with it all. That seems to me like pretty compelling
evidence that piracy is not much of an impediment to production.

------
lbatista
IP could bot be a fundamental right, but unrestricted communication is.

------
nirvana
Since this article talks about the constitution, I wanted to quote the
preamble to the bill of rights. Since this set of amendments was enacted, as
part of the deal to get the constitution passed, it is illustrative of the
perspective of right at the time of adoption of the constitution.

"THE Conventions of a number of the States having at the time of their
adopting the Constitution, expressed a desire, in order to prevent
misconstruction or abuse of its powers, that further declaratory and
restrictive clauses should be added: And as extending the ground of public
confidence in the Government, will best insure the beneficent ends of its
institution"

In other words, the Bill of Rights was enacted "in order to prevent
misconstruction or abuse of its powers". This is referring to the limited
powers granted to the government in the constitution. Notice, the preamble
doesn't say "in order to grant rights...". The bill of rights contains
"further declaratory and restrictive clauses".

Thus, these clauses are not designed to create or grant rights, but are of a
"declaratory and restrictive" nature.

The constitution does not create any rights. There is no such thing, in the
american form of government, as "constitutional rights". People often use this
phrase when referring to the Bill of Rights, but it is imprecise, because the
Bill of Rights doesn't grant rights. IT doesn't say "the people shall have the
right of free speech", instead it says "Congress shall make no law ...
abridging the freedom of speech, or of the press;"

The right of free speech, as recognized by the First Amendment, _precedes_ and
predates the constitution.

The constitution is a document constructed under a theory of natural rights,
by a group of men, many of whom had just fought off a government they
considered oppressive because it didn't recognize their natural rights.

Every right, IP, or not, precedes the constitution, they are not granted by
the constitution.

Thus, where the constitution says: "The Congress shall have 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."

The use of the word "securing" is deliberate.

I'm not going to debate whether intellectual property is a natural right or
not. (But I wonder, if you come up with an invention but don't tell anybody,
isn't that a natural property right? I mean, to say that you don't' have a
right to it, would be to say that others have the right to forcibly take it
from you, wouldn't it?)

My point is simply that the constitution doesn't grant any rights, rights
precede it. The constitution gives the federal government _limited_ and
_enumerated_ powers. And the federal government does not have the power to
pass SOPA, both because there is no _enumerated_ power to do what it does, and
because the first amendment forbids it.

The question of whether IP is a natural right is a separate one, and
opposition to soap on constitutional grounds does not imply conceding it, or
not.

~~~
aamar
As a community of thoughtful 21st-century people, I suggest we reject entirely
the idea of "natural rights" and treat it as an archaism.

Natural _laws_ exist; regardless of anything you, I, or the government does,
gravity continues to exist as a physical, observable force. Natural rights do
not work the same way; they are inherently and in principle unobservable both
directly and indirectly. The only thing that is real are the rights that we
have in practice (e.g. as a function of law, economics, culture) and the
rights that we ought to have, based on testable theories of how these rights
lead to human flourishing.

I say this not to demean rights or to say rights or liberty are unimportant.
(Similarly, if I say evolution rather than direct divine intervention created
humans, that does not demean humans.)

The reason I make this claim is because "natural rights" is a complex concept
that many people struggle to understand. But most of that struggle comes from
it being an unsustainable idea as well as a dead end: it discourages serious
consideration of how we should best organize our society. Religiously-inspired
philosophers (John Locke, in this case) spent much time on ideas like this;
certainly some people inspired by these ideas did some good things. But I
think in our modern era we should set these ideas and other bad philosophy
aside and work from better foundations.

Not only will this lead to stronger, more useful thinking generally, but it
will also lead to more secular, persuasive dialogue with our legislators in
the short term. They are bound in various ways by the Constitution, but they
are not bound by the theory of natural or inalienable rights, which is not
actually part of that document (see
<http://en.wikipedia.org/wiki/Declarationism>).

edited for clarity.

~~~
JoeAltmaier
Better foundations? You mean utilitarianism? That's a dead end too.

As a monkey-troup-descended race, we operate on some pretty common and
predictable impulses. To manage those impulses we establish some premises and
call them rights. Right to life, liberty etc.

Call them something else than 'natural rights' if you must, but its folly to
ignore their existance.

~~~
aamar
_Better foundations? You mean utilitarianism? That's a dead end too._

Currently, utilitarianism does seem to have problems, but not every framework
for measuring or improving social well-being will necessarily share the
problems of utilitarianism. One promising approach:
<http://en.wikipedia.org/wiki/Capability_approach>.

 _...we operate on some pretty common and predictable impulses. To manage
those impulses we establish some premises and call them rights. Right to life,
liberty etc._

If I understand you correctly, you are saying that rights are something
separate from natural impulses; they are things that we use appropriately
manage (or channel) those impulses. I basically agree. But: "manage" must mean
some goal that is separate from the impulses themselves, and when we establish
rights that we think will appropriately direct impulses towards some goal,
those rights--whether inspired by science or theology--cannot be considered
natural. They are human guesses, subject to scrutiny, discussion, and
improvement--to call them natural is untrue and confusing.

------
kristopolous
edit: Just because I'm stating this fact, doesn't mean that I endorse it.
Please, just because you agree that the world unfortunately is this way, don't
downvote me as if I'm the cause of the current state of affairs. I'm not old
enough or powerful enough to be so.

Is the author a constitutional lawyer? Because if not, I really can't trust
any of this.

The reason that constitutional lawyers exist is because this short document is
deceptively sophisticated and every interpretation of every stanza has seen
its day in court almost every generation since its authorship.

Just reading something and assuming that the legal ramifications are clear and
apparent without knowing the extensive history of the actual legal
ramifications belongs more in the world of political opinion than anything
remotely approximate to legal standing.

It's almost as if a corpus of court proceedings a 100 meters long should be
affixed to every word in order to gain an appreciation for what is legally
pursuant via the constitution.

~~~
baddox
I'm not sure I can agree with everything you're saying. Was the Constitution
written with the expectation that later generations would consider it
"deceptively sophisticated" and that only "constitutional lawyers" should be
able to make sense of it? Was it purposefully written so that later
constitutional lawyers could interpret it in new ways that seem counter-
intuitive to everyone else? I don't think so.

~~~
kristopolous
Of course not. But that's what's happened. And as a result, the barrier to
entry in knowing the true meaning is now quite high.

I'm not placing a vote of approval of this reality; just stating that it
exists. It aggravates me too.

~~~
baddox
Then where did the supposed complexity come from?

