US Citizens Should Try The Copyright Monopoly As Unconstitutional

Picture of United States Declaration of Independence

Legal scholar Stephen Kinsella argues a fascinating line of thought I haven’t seen before: the entire copyright monopoly in the United States may actually be unconstitutional.

In the comments field of my recent column on Techdirt, Stephen Kinsella argues that the entire copyright monopoly is unconstitutional. What’s more, he appears to have a solid base for that reasoning. Not only is he a patent/copyright monopoly attorney since two decades, he is also active in the monopoly debate.

His reasoning goes like this:

The copyright monopoly is a limitation of freedom of speech. If I write a poem, you are legally prohibited from reciting that poem in public or to a stranger, because of my copyright monopoly on that poem. Therefore, it is clear that the copyright monopoly is a limitation on freedom of speech.

The part of the US Constitution that allows the US Congress to enact copyright monopoly laws, thusly limiting freedom of speech, was in the original Constitution.

However, that constitution has been amended many times. And here’s the important part: a later amendment takes precedence over earlier constitutive text. A clear example is how the 21st amendment of 1933, which lifted alcohol prohibition, overrides the 18th amendment of 1921, which enacted the same.

Thus, we have shown that: 1) a later amendment supersedes earlier text of the constitution, and 2) the copyright monopoly restricts freedom of speech, and 3) the part of the constitution that gives Congress the right to enact copyright monopoly laws was in the original text of the US Constitution. I think you can see where this is going.

Specifically, it is going to the First Amendment enacted in 1791, which says,

Congress shall make no law … abridging Freedom of Speech …

The conclusion is as startling as obvious: the First Amendment revoked Congress’ right to enact copyright monopoly laws, and that has just never been tried in a courtroom.

He has written a longer article on the subject.  This is something I haven’t seen used as a defense in copyright monopoly cases in the United States, and I’d love to see it tried. While the ramifications would be immense, courtrooms should always practice consequence neutrality.

Rick Falkvinge

Rick is the founder of the first Pirate Party and a low-altitude motorcycle pilot. He works as Head of Privacy at the no-log VPN provider Private Internet Access; with his other 40 hours, he's developing an enterprise grade bitcoin wallet and HR system for activism.

Discussion

  1. illunatic

    Why not? It worked for flag burning!

    I supposed there is some question still of what constitutes “speech.” Flag burning, for example, was considered by the court to be “symbolic speech.”

    The legal definition of symbolic speech being “actions that purposefully and discernibly convey a particular message or statement to those viewing it.” [I used wikipedia]

    Anyway, that should give some direction as to which scenarios would be most appropriate for taking such action as suggested by the author.

  2. Mike Masnick

    Unfortunately… there have been multiple cases that have addressed the question of whether or not the First Amendment supersedes copyright… and the Supreme Court is pretty clear that it does not. In fact, there are rulings that claim (ridiculously), that copyright enables the First Amendment, calling it “the engine of free expression.” So… it’s been tried and failed. There are some good books on the subject, though. Mainly “No Law” by Lange/Powell and “Copyright’s Paradox” by Netanel.

    While these aren’t argued on the basis of the 1st amendment coming later, given the long line of jurisprudence on the conflict between the two things, there’s simply no way the courts will give any credence whatsoever to that argument.

    1. Rick Falkvinge

      Sorry to hear that, but I probably shouldn’t be too surprised. I facepalm every time I see claims that the copyright monopoly would somehow have a positive correlation to freedom of speech; the copyright industry loves claiming this.

      Thanks for the info, Mike.

      1. DavidXanatos

        They don’t mean “freedom OF speech”, but “freedom FROM speech” just some one misspelled it in the court documents.

      2. Byte

        I still say it’s only freedom of speech, *for the first person to say it*. It’s not freedom of speech if a 2nd person isn’t allowed to say the exact same thing, without the permission of the 1st person.

        Blue, Blue,
        Green, Blue,
        Purple, yellow and orange, too.

        THERE! From this moment on, until at least 50 years after my death, *nobody* is allowed to name those colours in the same order. Freedom of speech or not, you do that, you are going to pay dearly!! This means that the “speech” you are allowed to utter has now been diminished.

        Another, quite real, example is of course the famous “I have a dream” speech given by MLK. It’s copyrighted. You are not allowed to repeat it verbatim in public.

        It’s clear that legally, the argument is absolutely right. And I believe SCOTUS knew that too, but, that conclusion would be so damaging, it just was not an option. So that’s when it’s time to get creative and come up with some story why left is right and up is down.

        That is why whenever you discuss Freedom of Speech, call it “Freedom of Speech Except If Someone Said It Before Me and Owns The Rights To It”

    2. Skaperen

      While I have not looked at those multiple cases addressing copyright, I suspect they are all related to the typical past copyright violations which involve someone trying to benefit from a copyright violation for the purpose of making money, then using freedom of expression to justify it.

      But in a purely uncompensated context, where one makes expressions, in particular composed expressions that are not made entirely of other content AND not including the entirely of other content, and gives them away, this argument might have a new standing to be heard. We all know well that in todays “well connected world”, where free (as in beer) expression now dominates, this is a new perspective to be considered.

      We should also look at what monopoly means. What I know of it involves those words, again: making money. How is giving something away for free a form of making money?

    3. Stephan Kinsella

      Agreed that courts are unlikely to accept this argument, but I do think it’s a good argument. Not that it’s the primary argument. Even if copyright were constitutional that does not make it just. It is unjust even if it is constitutional.

      The argument is similar to, even stronger than, IMO, anarchist-abolitionist Lysander Spooner’s argument that slavery was unconstitutional. http://www.lysanderspooner.org/UnconstitutionalityOfSlaveryContents.htm Ironically the one thing Spooner was weak on was that he believed in IP. He was a total crank on this issue. On everything else he was heroic and ahead of his time.

      1. Rick Falkvinge

        On the other hand, courts in the United States aren’t judges only. When somebody is on trial for copyright infringement, there’s also juries.

        I think the reasoning above is an excellent argument for jury nullification of the trial.

        Also, it may be worth noting that the restrictions in freedom of speech may not have been as apparent at the writing of the constitution and first amendment; that recent technical developments have highlighted this. That would be a response to the “why not until now?” question.

        1. Larry

          Yes but if we are arguing the constitutionality of something it goes to federal court which does not have juries, just justices.

        2. Stephan Kinsella

          Not only this: you don’t have to argue that the copyrgiht clause itself is unconstitutional. Only that the current copyright act is. Maybe it’s possible for Congress to design some kind of law that secures some kind of copyright to authors, to promote science (as they meant that term then to mean artistic works), that does not trample free speech. But it seems clear that the current copyright statute and enforcement regime does interfere with free speech.

  3. […] method/formula/human gene (you’re patented already. Do cool kids still say PWNED?).Today, the debate continues as to whether copyright law should supersede our first amendment rights. My opinion, if you […]

  4. Fredrik

    As far as I know, Fair Use makes copyright not conflict with free speech. A prime example is the English language edition of Wikipedia, which includes lots of copyright restricted citations, images and excerpts of music. DMCA however is in conflict with free speech.

    1. Zacqary Adam Green

      In practice, Fair Use doesn’t protect free speech because it’s only valid as a court defense. The burden of proof is on the Fair User, not on the monopoly holder, and often only one of the two parties can afford to go to court.

      Then again, US laws have never been particularly concerned with people’s economic ability to defend their rights.

      1. Crosbie Fitch

        Yes, people really do need to give up this desperate idea that fair use/dealing is their right & salvation, and the only hope to push back copyright’s encroachment upon their cultural liberties.

        ‘Fair use’ requires infringement (and deep pockets from which to afford time in front of a conciliatory judge).

        The best solution (until copyright is abolished) is for human beings to be exempt, i.e. that copyright applies only to corporations.

        1. Rick Falkvinge

          That’s actually a much better wording than the one I have used until now, that it only applies to “commercial activity”. It is much easier to delineate that it doesn’t apply to natural persons, only corporations.

          1. Crosbie Fitch

            The ‘non-commercial’ exemption derives from the invidious “You can make copies of my work, or anything else that would otherwise infringe my copyright, but only as long as you don’t get any monetary benefit from doing so”. As Lawrence Lessig and Creative Commons have found, it’s pretty difficult for all except a monk to prove that they aren’t even indirectly benefitting from their amateur cultural engagements. First sale also puts a spanner in the works. A man in the middle can make 10,000 copies of an NC work for nothing. Fred finds those copies ‘abandoned in the street’ and then sells each one for a dollar.

            Ethical first principles (natural law/rights) make things much clearer. Human beings have liberty. Corporations are financial/legal instruments and have what we permit them (far too much). And yes, it’s very easy to tell the difference between a corporation and a human being (I’ve never seen the former stuck in prison for copyright infringement, or starving in the gutter because they were bankrupted by million dollar damages).

            It is not for copyright holders to decide the terms and conditions by which they will permit the people to copy their published works, it is for the people to cease the application of anachronistic privileges against them, especially by immortal corporations.

  5. […] found to be irrelevant when they are show to contradict rights granted to us in the Constitution.Some would like to see copyright challenged before the court as being unconstitutional (I know I would). I […]

  6. JWS

    No rights exist in a vacuum. Yelling fire in a crowded auditorium. Slander. Stealing food from the table of a creator. Which other forms of theft do we also then advocate? What fruits of your own labors would you have confiscated in the name of someone elses “rights”? Does their hunger trump your own? We do not have rights absent responsibilities… There are few perfect truths; killing the golden goose of intellectual creativity – A mad and selfish rush to stupidity. There is surely something in between that preserves creation… as with patents.

    1. Rick Falkvinge

      killing the golden goose of intellectual creativity

      I agree that it is a problem that the entire copyright industry wants to kill the Internet to preserve their monopolies.

      1. Al Kyder

        Apple products for example should not be covered under copyright law because they are useful articles whose form cannot be cleanly separated from their function.

        I think you will find many Gems like tis lurking under British Naval law. They are for the preservation of commons.

        A Pirate Party should be well versed in Maritime law. ☠ ⌛ ⚑

    2. Scary Devil Monastery

      With “patents” you mean the plehtora of IP laws which currently are in such a sad state that if Ford invented a wheel today any competitor would have to make their wheels in another form than a ring or circle (see Apple’s interesting lawsuits regarding what constitutes “brand protection” in the form of “rectangular communications devices with glass screens”).

      1. Al Kyder

        @ Scary Devil Monastery

        Oh! now thats a can of worms you just opened.

        In my experience Maritime law always overrides terrestrial Law (With the possible exception of the United States and Japan which have a different code)

        When Britannia rulled the wave she also took and implanted her maritime law in every part of the world.

        These laws are very old from the days of sail.

        Many local and state governments have lost expensive court cases thinking they can over ride maritime law only to find out they can not ever.

        These laws often seem silly and obsolete until someone explains how this silly wording is applied to a real situation.

        Apple have Apps. These apps can be used for navigation at sea. You can use your iPhone as a plotter and find your way at sea in total darkness.

        Oh! Oh! OH! the can of worms, worms ship worms, land worms “torpedo worms”

        One of the best things about Maritime law is that it is Universal, and unless you pay the local authority / Council ie are a property owner, then there is almost nothing they can do. Especially if the person is from another country.

  7. Jon Severinsson

    Actually, I don’t think you even need the first amendment to strike down US federal copyright law as unconstitutional, as the clause in the original constitution begins with “To promote the Progress of Science and useful Arts”. [1]

    That would mean that any US fedaral copyright and patent laws are unconstitutional unless you can *prove in court* that they ” promotes the Progress of Science and useful Arts”…

    Note that this argument, unlike the first amendment argument, only applies to federal law, not state law.

    1: https://en.wikipedia.org/wiki/Copyright_Clause

    1. Anonymous

      Unfortunately for this argument, there is a strong presumption that laws are constitutional. The official reasoning for this is that it must be presumed that Congress followed the Constitution. The real reasoning is because any other situation would end in a giant mess of every law that pissed off some interest group being on trial with the burden of proof on Congress.

  8. Crosbie Fitch

    The constitution doesn’t empower Congress to grant the privilege of copyright in the first place, but like the Sun orbiting the Earth, the consensus of opinion is that it does empower the granting of copyright, therefore it does. http://culturalliberty.org/blog/index.php?id=276

    1. Rick Falkvinge

      Right. Any constitution is only as strong as the majority’s intention to interpret it. :(

  9. Seth Finkelstein

    Regarding the idea that the “First Amendment revoked Congress’ right to enact copyright monopoly laws, and that has just never been tried in a courtroom.” – I forget the exact name of the principle, but it’s basically “If it were that easy, it would have been done already”. If you read some of the cases e.g. Lessig has argued about limitations of copyright, it’s clear that if it hasn’t been tried before, it’s because it’s a non-starter.

    1. Rick Falkvinge

      This is a fairly common line of reasoning – but you may be temporarily forgetting that you’re addressing somebody who disregarded everybody who said changing the world by founding a new political party was a complete non-starter, too. :)

      I have learned to have very little caution for things that other people say are impossible, when the logic seems to check out to me.

      1. Seth Finkelstein

        Sigh. We all change the world in some sense just by living in it. Politics is a complicated subject, and I’d also say there’s a similar effect at work – but that’s a whole different topic. I think some caution for the law is warranted. Here’s the relevant U.S. Supreme Court case I had in mind, Eldred v Ashcroft:

        http://www.law.cornell.edu/supct/html/01-618.ZS.html

        “The appeals court reasoned that copyright does not impermissibly restrict free speech, for it grants the author an exclusive right only to the specific form of expression; it does not shield any idea or fact contained in the copyrighted work, and it allows for “fair use” even of the expression itself.”

        “2. The CTEA’s extension of existing and future copyrights does not violate the First Amendment. That Amendment and the Copyright Clause were adopted close in time. This proximity indicates the Framers’ view that copyright’s limited monopolies are compatible with free speech principles.”

        “The First Amendment securely protects the freedom to make–or decline to make–one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.”

        1. Crosbie Fitch

          Copyright does indeed grant the author a privilege to exclude others from copying their expression, however the Constitution did not empower Congress to grant such a privilege. The Constitution only empowered Congress to SECURE the author’s exclusive right to their writings, i.e. the exclusive right they were endowed with by their creator.

          We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. –That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

          So it’s necessary to infer the Framers’ view? I suggest it’s primarily James Madison’s view at work here. And do try to bear in mind the difference between the Constitutional clause (1787) empowering Congress to secure the author’s exclusive right to their writings and the granting of copyright (1790).

          In any case, copyright circa 1790 was about the printing/making of material copies, not about speech viz the telling of stories, singing of songs, or electronic diffusion of intellectual works.

          I suggest that at the very most copyright can only constrain publishing corporations – not human beings. Only the latter have liberty by nature – the former being subject to whatever regulations we choose.

          As to “Other people’s speeches” this confuses the English language’s dual use of possession for both authorship and ownership. Other people do not own their speech as property. There is only the truth of ‘who spoke what to whom’.

        2. Rick Falkvinge

          Ah, so that was what Eldred v Ashcroft was about. I’ve heard that name in passing reference a couple of times.

          Thanks for the very informative reply. However, if a jury is involved, this might serve as an additional argument towards jury nullification (which does not even require a valid legal justification, if I’m not misinformed)?

          Of course, that kind of torpedoes the point that it would be a valid legal point, and shifts it rapidly to rhetoric.

          Cheers,
          Rick

          1. Seth Finkelstein

            You’re welcome. Yes, that’s in part what Eldred v Ashcroft was about. Losing that case was a major factor in Lawrence Lessig changing his focus from Internet policy to political corruption.

            Jury nullification is a “meta-legal” strategy. I won’t say it’s impossible, but people have tried it too, and gotten bad results. See e.g. the Tenenbaum case:

            http://www.boston.com/news/local/massachusetts/articles/2009/04/08/to_noted_lawyer_its_an_open_and_shout_case/?page=1

            The problem with rhetoric is that the other side has its rhetoric too. So it’s really easy to be in an echo chamber and think the world is applauding, and then finding out it was only a narrow confined space which wasn’t even heard elsewhere.

  10. Andrew Robinson

    Given that the first amendment was enacted in 1791, after the first (fairly short duration) US copyright law, a case could be made that copyright extensions are illegal but reductions would be allowable, and that the law must be rolled back to the maximum set in 1790.

    1. Seth Finkelstein

      “We already tried your idea. It didn’t work.” – http://www.law.cornell.edu/supct/html/01-618.ZS.html

  11. […] seen before: the entire copyright monopoly in the United States may actually be unconstitutional. WT news feed Short URL: […]

  12. […] US Citizens Should Try The Copyright Monopoly As Unconstitutional (falkvinge.net) […]

  13. Morten

    It is probably correct that the changes congress has made since that amendment, are technically unconstitutional, but the law from before the amendment still stands.

    Freedom of speech is there so that you can voice your opinions freely to who wants to listen. It is not so that you can say what ever to whom ever. Threats for example are prohibited, because it harms individuals ability to do as they please as long as they do not harm others, the underlying principle of the constitution. You can also not distribute private information. Both these things would also fall if the entire copyright law falls because of this amendment. However, one cannot just look at the words and interpret them as wanted as a judge, one must try to judge what the words meant to those who put it there, otherwise nothing in a constitution will ever make sense.

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