Constitution Day 2020 and Copyrights

Today, September 17, is Constitution Day. Two hundred thirty-three years ago this day, the proposed Constitution of 1787 was signed by the Philadelphia Convention delegates assembled at Independence Hall. As Free State Foundation President Randolph May and I pointed out in our 2018 op-ed, "A Constitution Day Call to Strengthen Copyright Protection," the only express provision for individual rights contained in the Constitution of 1787 is the Article I, Section 8 Intellectual Property Clause – also known as the Copyrights Clause.  

FSF President Randolph May and I give a more detailed account of this in our book, The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective. In the view of the American Founders, copyrights are rooted in individuals' natural rights to the fruits of their labors – in this case, their creative labors. And government exists to protect and enlarge rights to acquire, use, and transfer property, including property in creative works. 

We build on those principled themes and make a case for strengthening copyright protections today in our new book, Modernizing Copyright Law for the Digital Age: Constitutional Foundations for Reform. Today, it's fitting to remember that Congress's ongoing responsibility for securing copyrights is based on the high authority of U.S. Constitution. 

Modernizing Copyright Law for the Digital Age is available through Amazon (here) and through Carolina Academic Press (here).

Constitution Day 2019

Today, September 17, is Constitution Day, commemorating the signing of the proposed U.S. Constitution at the conclusion of the Philadelphia Convention in 1787. 

The work of the Free State Foundation, being dedicated constitutional principles and the rule of law, often addresses the intersection of current communications and intellectual property policy issues with constitutional structural and individual rights issues. Here are some publications by FSF scholars from 2018 and 2019 touching on constitutional matters: 

• FSF Comments regarding Commercial Leased Access Rates (July 22, 2019) (explaining why cable leased access rules are contrary to the First Amendment's Free Speech Clause jurisprudence);

• Prof. Daniel A. Lyons, "State Net Neutrality Mandates and the Dormant Commerce Clause: Some Preliminary Thoughts,"Perspectives from FSF Scholars, Vol. 14, No. 14 (May 21, 2019);

• Randolph J. May and Seth L. Cooper, "The FCC Should Stop Potential Liability for Smartphone Owners: The Ninth Circuit's Autodialer Decision Threatens Text Messaging Services," Perspectives from FSF Scholars, Vol. 14, No. 5 (Feb. 15, 2019) (explaining how a broad definition of "autodialer" bans protected free speech, contrary to the overbreadth doctrine in First Amendment jurisprudence);

• Randolph J. May and Seth L. Cooper, "John Marshall's Jurisprudence Supports Preemption of California's Net Neutrality Law," Federalist Society Review, Vol. 20 (Jan. 28, 2019);

• Randolph J. May, Maintaining the Constitution's Separation of Powers," Perspectives from FSF Scholars, Vol. 13, No. 37 (Oct. 1, 2018) [originally published in the Washington Times];

• Randolph J. May and Seth L. Cooper, "A Constitution Day Call to Strengthen Copyrights," Perspectives from FSF Scholars, Vol. 13, No. 35 (Sept. 17, 2018) [originally published in Real Clear Markets]; 

• Christopher J. Walker, "Judge Brett Kavanaugh's Views on Chevron Deference at the FCC and Beyond," Perspectives from FSF Scholars, Vol. 13, No. 32 (Aug. 28, 2018); 

• Seth L. Cooper, "FCC Proposals Promoting Infrastructure Deployment Don't Violate Anti-Commandeering Rule,"Perspectives from FSF Scholars, Vol. 13, No. 29 (Jul. 17, 2018); 

• Randolph J. May, "Woodrow Wilson's Case Against the Constitution," Perspectives from FSF Scholars, Vol. 13, No. 20 (May 31, 2018) [originally published in the Washington Times].

Not to be forgotten is the ongoing series on Constitutionalizing the Administrative State by Professor Joseph Postell, a Member of FSF's Board of Academic Advisors, which was the subject of yesterday's blog post.

Happy Constitution Day.  

A Natural Rights Perspective of the Constitution

Yesterday, September 17, 2017, was Constitution Day, commemorating the 230th anniversary of the formation and signing of the U.S. Constitution. For a good source of information regarding the natural rights perspective that influenced the Founding Fathers during the formation of the Constitution, please read "The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective" by Free State Foundation President Randolph May and Senior Fellow Seth Cooper.

A Day to Remember Our Constitution's Protections for IP Rights

On Constitution Day – September 17 – we celebrate the framers signing of America’s written fundamental law. Among its sections and clauses, the Constitution’s provision for intellectual property (IP) rights deserves renewed appreciation by the public and support by Congress. Stronger security for IP rights enhances our economic climate and fulfills an important constitutional obligation.

Copyrighted works and patented inventions increasingly are vital to our nation’s prosperity in today’s digital Internet-connected global economy. A report by the U.S. Department of Commerce found that value added to our economy by copyright- and patent-intensive industries totaled approximately $1.8 trillion in 2014, amounting to about 10.6% of the U.S. gross domestic product. Also, jobs supplied by copyright-intensive industries totaled 5.6 million in 2014, while patent-intensive industries provided 3.9 million jobs.

The vibrant growth in IP’s value to our economy has been driven by digital technology and Internet connectivity. However, modern means of production and distribution also render IP vulnerable to online theft and infringement. Although often overlooked, the Constitution entrusts Congress with the responsibility to meet such challenges and ensure the security of copyrights and patent rights. The conceptual and historical backdrop of that responsibility are examined in the book, The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective, that I co-authored with Free State Foundation President Randolph May.

Logically, IP rights reflect the natural rights principle that a person has a right to the proceeds of his or her own labors. Those proceeds are a person’s private property, deserving protection by equal laws. Historically, this natural rights and property rights understanding of copyrights and patents prevailed in the newly independent American states. By the time the framers met for the Philadelphia Constitutional Convention in 1787, twelve of the thirteen former colonies had adopted state copyright laws, and a few provided patent protections for inventors.

James Madison concluded that the lack of uniformity of among state copyright laws was a vice that needed to be remedied. Other framers in Philadelphia agreed. The Constitution’s Article I, Section 8, Clause 8 — the intellectual property (IP) clause — grants Congress the 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.” As Madison observed in Federalist No. 43, conferring on Congress the power to protect copyrights and patent rights would be highly useful to individual authors and inventors and also serve the public good.

The First Congress to convene under the Constitution promptly exercised its constitutional power to secure copyrights and patent rights. In addition to establishing a system of taxes and revenues, setting up the federal judiciary, selecting the permanent capital site, and drafting the Bill of Rights, the First Congress passed the Copyright and Patent Acts of 1790. Both acts were signed by President George Washington. Those landmark laws set IP on a free market footing by expressly recognizing authors’ and inventors’ exclusive rights to contract for the sale or licensed use of their writings and inventions. The Copyright and Patent Acts of 1790 also provided civil rights of action for creators and inventors whose protected works or inventions were infringed.

In the nearly two hundred fifty years that have followed, Congress has intermittently exercised its constitutional power to further secure IP rights. Drawing upon natural rights and property rights principles, statesmen such as Daniel Webster and Henry Clay helped pass the first substantial revisions of the Copyright and Patent Acts in the 1830s. Also cognizant of natural rights and property rights principles, in 1891 the Centennial Congress secured copyright protection for foreign authors in order to ensure American authors were treated equitably overseas. In 1897, Congress made willful infringement of certain copyrighted works a crime subject to federal prosecution. And through subsequent legislation by Congress, the scope of copyright protections has expanded beyond books and engravings to include unauthorized reproductions or public performances of motion pictures and digital sound recordings. Likewise, the scope of patent protections now includes inventive designs as well as manufacturing and other production processes that embody the latest digital technologies.

Bearing those constitutional, historical, and economic considerations in mind, there is work ahead for Congress that is essential to securing American IP rights in the Digital Age:

• Inexplicably, current federal copyright law does not provide public performance copyright protections in sound recordings made before 1972. Congress should pass legislation guaranteeing that copyright holders have the same right to receive royalty payments for public performances of pre-72 sound recordings as for performances of later recordings.

• The effectiveness of Digital Millennium Copyright Act of 1998’s “notice and takedown” process for removing infringing music and other content from the Internet has been undermined by two decades of technological advances and changes in user habits. To better protect the value of creative artists’ copyrighted content from massive online infringement activity, Congress should revise and update the DMCA.

• The Copyright Office’s capabilities are outdated. Only limited online searching for copyright registration records is available and online searching for recorded copyright title transfer is unavailable. Congress should pass legislation to modernize and restructure the Copyright Office. It should give the Register of Copyrights the independence necessary to make technology upgrades and to establish a comprehensive searchable online database of copyright records. Upgrading the Office’s capabilities will reduce parties’ compliance costs and enhance the economic value of copyrighted works.

• Steep losses to the U.S. economy caused by overseas piracy of IP need to be curtailed. A 2017 report by the bipartisan IP Commission calculated that counterfeit goods, pirated software, and trade secret theft cost our economy between $225 and $600 billion annually. Congress should urge the Trump Administration to include strong IP rights enforcement provisions in foreign trade negotiations, and proposed treaties that contain such provisions should be ratified and supported by implementing legislation.

As we reflect on our Constitution’s origin as well as its guarantees for representative government and individual freedoms, we should not forget the wisdom of the framers in including the protection of copyrights and patent rights in our nation’s fundamental law. Congress should vigorously pursue its constitutional responsibility to secure IP rights and put our nation’s economy on the strongest possible footing for the Digital Age.

Constitution Day at the FCC

Constitution Day officially is September 17, 2016. This year marks 229 years since the signing of the Constitution on September 17, 1787, in Philadelphia.

Not many people celebrate Constitution Day, but I’ve always thought it worthy of commemoration. It’s an opportunity to take a moment – or maybe more than a moment – to think about the Constitution’s meaning and its relevance to today’s issues.

Over the years, I’ve written often about the ways the FCC’s actions implicate constitutional strictures and constitutional values. Because the FCC regulates media, communications, information services, and now the Internet, it is not surprising that many of the agency’s actions implicate the First Amendment’s free speech guarantee.

While many of the FCC’s actions present a target-rich environment, today I want to focus on just one current proceeding that implicates several different constitutional provisions – and that appears to run up against constitutional constraints.

The proceeding I have in mind is the Commission’s proposal for the government to mandate a new design, with new functions and features, for video navigation devices and apps, and, now, in its latest iteration, even to impose a compulsory license on video distributors that will dictate the terms and conditions under which they must make available their video programs to all who wish to take them.

Let’s consider the ways this proposal implicates constitutional strictures.

First, whether or not the FCC acknowledges this explicitly in so many words, the agency proposes to require video distributors like Comcast, AT&T, Charter, Verizon, CenturyLink, Frontier, and the multitude of others, to utilize a government-prescribed format, rather than one of their own choosing, for presenting a navigation search menu. And the video distributors will not be permitted to “discriminate” in the way they present the search menu content and functions.

No less than a government diktat regarding the content of video programing, a government diktat prescribing the permissible presentation, arrangement, and content of a search menu violates the First Amendment’s free speech guarantee as well. In light of the acknowledged competitiveness of the video distribution market, including the competitiveness of the navigation device and app market segment, the government can offer no compelling reason for restricting the speech of the video distributors.

Second, the FCC’s proposal most likely runs afoul of the Constitution’s Intellectual Property Clause because it almost certainly would lead to violation of copyright owners’ rights. As the Copyright Office explained in its August 3, 2016, letter to members of Congress: “The rights protected by the Copyright Act are ‘exclusive’ to the copyright owner, meaning that the copyright owner generally has full control as to whether or how to exploit his or her work, including by entering into licensing agreements.” Even while the FCC has continued to selectively leak revisions to its proposal, nothing has changed the fact that copyright protection would be jeopardized under a regime that requires programming to be shared across multiple devices under an open standard license.

And now, the FCC appears – again without explicitly acknowledging this in so many words – intent on imposing a new compulsory license that would require copyrighted programming to be made available to all entities on a non-discriminatory basis. Of course, such a compulsory license is the very opposite of the exclusive control which Article 1, Section 8, Clause 8 of the Constitution confers on copyright owners: "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." For a full historical and jurisprudential examination of the Founders’ intent regarding the Intellectual Property Clause, please see my book, co-authored with Free State Foundation Senior Fellow Seth Cooper, The Constitutional Foundations of Intellectual Property.

It is true that the FCC doesn’t enforce copyright violations and is not a repository of copyright expertise. All the more reason for the Commission to consider carefully the views of the government entity – the Copyright Office – possessing specific copyright expertise and charged with advising Congress regarding copyright policy. The FCC, like all government agencies, has a responsibility to uphold constitutional values. If the FCC acts consistently with its responsibilities, it will pull back its video navigation proposal.

Finally, the FCC keeps revising its proposal “on the fly.” And now, in its latest iteration, the proposal includes the compulsory license discussed above. This appears to be – although all we have to go on are FCC Chairman Tom Wheeler’s blog and a minimal “fact sheet” – a significant departure from the original proposal. As a matter of due process – even aside from compliance with Administrative Procedure Act notice and comment requirements – the agency should put its latest revised proposal out for public comment in a “Further Notice of Proposed Rulemaking.”

Such a “Further Notice” would enhance the prospects that the Commission would end up with a result that constitutes sound policy and comports with the law – or at least a result that comes closer to those obvious goals. Following this course seems to be required as a matter of fundamental fairness, which is what the Constitution’s due process clause is all about.

Again, September 17 is Constitution Day. Don’t let it pass without giving some thought to what the Founders bequeathed to all of us.

Truth be told, the FCC commissioners ought to consider everyday Constitution Day as they conduct the agency’s business. But, for now, perhaps Chairman Wheeler and his fellow commissioners will use the occasion of this particular Constitution Day to stop and reflect on how the agency’s problematic navigation device proposal comports with important constitutional constraints and values.