Prof. Adam Mossoff Writes on Constitutional Protections for IP Rights

On March 8, the Heritage Foundation published a paper by Professor Adam Mossoff titled "The Constitutional Protection of Intellectual Property." From the intro:

This Legal Memorandum explains how intellectual property rights have long been secured as property rights under the Constitution. It first reviews the constitutional text and original public meaning of the Copyright and Patent Clause. It then details the numerous federal court decisions from the 19th century that have secured patents and other intellectual property rights as “property” under the Due Process and Takings Clauses of the Constitution. It concludes by identifying how the modern Supreme Court has consistently followed these precedents, even if it has occasionally forgotten them or not cited them directly. 

Be sure and check out this excellent paper by Prof. Mossoff on IP rights under the Constitution. It is full of citations to legal authorities dating back to the formation of the Constitution, and offers concise analysis going up to the present. The important truth that copyrights and patent rights are constitutionally-protected property rights can't be made often enough.

 

In addition to teaching at the Antonin Scalia Law School and being a Visiting Intellectual Property Fellow at the Heritage Foundation, Professor Mossoff is a member of the Free State Foundation's Board of Academic Advisers. 

Constitution Day and IP Rights Protection

Today – September 17^th – is Constitution Day. At the Free State Foundation, a good part of our work involves upholding constitutional principles. This aspect of our work includes promoting First Amendment free speech rights and Fifth Amendment property rights as well the limited government and rule of law principles that are at the core of our constitutional system. 

This year, as part of our commitment to promoting an understanding of constitutional principles and the rights secured by the Constitution, we have expanded our work in the intellectual property area. Intellectual property, after all, is property deserving of protection, just like other forms of property. Indeed, our Founders recognized the importance of intellectual property protection to the nation's well-being by specifically authorizing Congress, in Article 1, Section 8 of the Constitution, to secure IP rights. 

So, on this Constitution Day 2013, I want to take the opportunity to call to your attention the series of four FSF's "Perspectives from FSF Scholars" papers which explore foundational principles of intellectual property that are grounded in our constitutional system and which ought to remain firmly part of our constitutional commitment. The Perspectives are authored by my colleague Seth Cooper and me. 

The discussion in these scholarly – yet easily digestible and interesting! – papers ranges broadly from the natural rights, Lockean origin of intellectual property protection, to the significance James Madison's too little known "On Property" essay, to the collaborative and early efforts of Madison and Noah Webster to secure IP rights in the federal Constitution and early state constitutions, and on to an explanation as to why the Founders' anti-monopoly and pro-IP rights protection views were not inconsistent. 

Seth and I hope to be able to add to this IP foundational series with further papers. But, in the meantime, in the spirit of Constitution Day, if you haven't already read them, I hope you'll take the opportunity to put them on your reading list. 

Here they are: 

The Constitutional Foundations of Intellectual Property 

Reasserting the Property Rights Source of IP 

Literary Property: Copyright's Constitutional History and Its Meaning for Today  

The Constitution's Approach to Copyright: Anti-Monopoly and Pro-Intellectual Property Rights

Putting IP into Constitutional Perspective

On May 10, FSF President Randolph May and I published our Perspectives from FSF Scholars paper, "The Constitutional Foundations of Intellectual Property." Our paper briefly explores the constitutional principles behind copyright and patent. Both are expressly recognized in Aricle I, Section 8, Clause 8 of the Constitution.

As we explain in our paper, a Lockean-Madisonian formulation of government's purpose and of property rights grounds intellectual IP (IP) in natural right, adjusted to a social context for the public good. This Lockean-Madisonian approach bolsters the property rights status of IP in the face of recent criticisms levelled against copyright and patent systems.
 
Understanding IP constitutional underpinnings is a necessary first step in constructing an informed policymaking approach to the rules for copyright and patent. And it's all the more important as IP becomes more and more important to fostering innovation in our digital-age information economy.
 

Thanksgiving Day 2012

Five years ago in my Thanksgiving message, I explained that I eagerly awaited the Wednesday-before-Thanksgiving Wall Street Journal almost as eagerly as the Thanksgiving Day turkey and stuffing. Well, almost, but not quite. 

But I do look forward each Thanksgiving eve to the Journal’s reprinting on its editorial page of the very same two lead pieces that have appeared each year since 1961. The first, “The Desolate Wilderness,” is a chronicle, based on the account of William Bradford, of the Pilgrims taking leave of the port of Delftshaven in 1620, crossing the Atlantic, and settling in Plymouth Colony. 

Of the Pilgrims’ journey, William Bradford's account ends this way: 

“Besides, what could they see but a hideous and desolate wilderness, full of wilde beasts and wilde men? and what multitudes of them there were, they then knew not: for which way soever they turned their eyes (save upward to Heaven) they could have but little solace or content in respect of any outward object; for summer being ended, all things stand in appearance with a weatherbeaten face, and the whole country, full of woods and thickets, represented a wild and savage hew. If they looked behind them, there was a mighty ocean they had passed, and was now as a main bar or gulph to separate them from all the civil parts of the world.”

The second, “And the Fair Land,”  written by long-time WSJ editor Vermont Royster, ends this way:

"But we can all remind ourselves that the richness of this country was not born in the resources of the earth, though they be plentiful, but in the men that took its measure. For that reminder is everywhere -- in the cities, towns, farms, roads, factories, homes, hospitals, schools that spread everywhere over that wilderness. We can remind ourselves that for all our social discord we yet remain the longest enduring society of free men governing themselves without benefit of kings or dictators. Being so, we are the marvel and the mystery of the world, for that enduring liberty is no less a blessing than the abundance of the earth. And we might remind ourselves also, that if those men setting out from Delftshaven had been daunted by the troubles they saw around them, then we could not this autumn be thankful for a fair land." 

When these two pieces are read together – and at our Thanksgiving meal we usually read aloud "The Desolate Wilderness" before cutting the turkey – and when we consider America's journey from the land with "a wild and savage hew" in 1620 to the "fair land" described by Vermont Royster in 1961, it is evident we have much for which to be thankful. 

It is worth reminding ourselves, and perhaps particularly so after a closely contested election, that, as Vermont Royster said, "for all our social discord we yet remain the longest enduring society of free men governing themselves without benefit of kings or dictators." 

If the idea of America is about anything, it is about the aspiration of those who inhabit our land to live in freedom under the rule of law, not under the rule of men. This is not to say that the reality of America has always lived up to the idea of America. It obviously hasn't. 

But that should not detract from the fact that the Pilgrims who landed at Plymouth Rock did not come to America primarily seeking riches; they came seeking individual freedom – freedom to worship, speak, and think as they pleased. And most of those who have followed the first Pilgrims to our shores have not come primarily seeking riches; most have come seeking the freedom that America offers, and the opportunity for personal fulfillment that individual liberty provides. 

For me, Thanksgiving is a holiday, of course, for giving thanks for America’s bounty. But it is also a holiday for celebrating, and giving thanks for, the freedom we enjoy, as a self-governing people, under our constitutional system of limited government, separated powers, and checks and balances. 

So, as we celebrate this Thanksgiving, it is worth remembering Ronald Reagan’s injunction: 

"Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children's children what it was once like in the United States where men were free." 

At the Free State Foundation, we are thankful that we live in a land – unlike many lands around the world – where we are free to advocate the principles in which we believe: limited government, free markets, property rights, the rule of law, and especially, in the context of much of our work in the communications law and policy field, free speech guaranteed by the First Amendment. 

As you enjoy your Thanksgiving holiday, we want you to know we are grateful for your support for our work, and, most of all, for your friendship.

Supreme Court Lets Technology-Neutral Speech Decision Stand

On June 18, the U.S. Supreme Court denied review in the case of Nelson v. Time Warner Cable. This leaves standing an important decision by the U.S. Court of Appeals for the 5th Circuit, Time Warner Cable v. Hudson (2012). 

Earlier this year, the 5th Circuit struck down provisions in Texas's statewide video franchising law that subjected certain cable providers to extra regulatory burdens from which new entrant competitors remained free. Significantly, Hudson's reasoning rested on First Amendment grounds.

In my February FSF Perspectives paper, "The First Amendment for the Digital Age: A Case for Treating Modern Technologies Equally," I discuss aspects of Hudson and its implications for the future of First Amendment jurisprudence:

[T]he Fifth Circuit took seriously the idea that free speech protections belong to cable video service providers, just like other speakers. Even more significantly, it made clear that the First Amendment prohibits government regulations that selectively impose burdens on certain competing video service providers, but not others. In fact, the Fifth Circuit's decision appears to be part of a growing trend in which federal courts are no longer willing to approve departures from equal application of free speech protections, regardless of the underlying technology at issue. Time Warner Cable v. Hudson also offers a window into the future of free speech jurisprudence for modern technologies – or at least it should. In particular, the case hopefully will be a precedent that will inform a reinvigorated and principled First Amendment jurisprudence for the digital age – a jurisprudence that treats with equal respect the speech rights of all speakers using all technologies.

Perhaps the Supreme Court's imminent decision in Fox v. FCC II – also discussed in a blog post at the beginning of the Court's term – will offer further developments of First Amendment doctrine regarding speech rights relying on different media technologies.

Tennis Channel Carriage Ruling a False Start Under First Amendment

In a December blog post titled "Tennis Channel Ruling: No Mere Foot Fault," FSF President Randolph May described the Tennis Channel's Section 616 "program carriage" complaint. An administrative law judge (ALJ) ruled it was unfair discrimination when Comcast said no to the Tennis Channel's request – made during an existing contract term – to be included in the same programming tier as the Comcast-affiliated Golf Channel and Versus (now NBC Sports Network). The ALJ ordered Comcast to carry the Tennis Channel on terms similar to the Golf Channel and Versus.

The ALJ's Tennis Channel ruling raises serious First Amendment problems. It has now been appealed to the full FCC for review. Hopefully, the Commissioners will take First Amendment principles seriously and reverse the ALJ's ruling.

Section 616 prevents multichannel video programming distributors (MVPDs) from preferring affiliated video programming over non-affiliated programming if it "unreasonably restrain[s] the ability of an unaffiliated video programming vendor to compete fairly." Whatever the FCC's obligations under Section 616, its actions must still be consistent with the First Amendment. This includes the Constitution's general prohibition of government censorship of speech based on content.

Content-based restrictions are presumptively unconstitutional and the government bears the burden of justifying them. The government is also generally prohibited from telling people what they must say. And it is well established that MVPDs are entitled to First Amendment protections like any other association or individual.

The ALJ's Tennis Channel ruling is especially problematic because it is unmistakably content-based. The ALJ analyzed and compared the respective programming of the Tennis Channel with the Golf Channel and Versus. This included the extent of overlap between the respective channels in terms of programming genres, target audiences, advertisers, and ratings. Deeming the Tennis Channel "similarly situated" to Versus and the Golf Channel, the ALJ concluded unfair discrimination against Tennis Channel resulted from certain business and editorial decisions made by Comcast, such as channel and tier placement. Comcast's Washington D.C. system, for instance, carries Versus on channel 7 and the Golf Channel on channel 11, but places the Tennis Channel on 735. And Comcast places Versus and the Golf Channel on its Expanded Basic or Digital Starter tiers while placing the Tennis Channel on its less popular Sports Tier.

As a remedy, the ALJ's ruling "requires Comcast to carry Tennis Channel at the same level of distribution that it carries the Golf Channel and Versus. Comcast Cable otherwise has full discretion in determining the level it chooses to carry the three channels." It also requires Comcast "to provide Tennis Channel with equitable treatment (vis-à-vis the Golf Channel and Versus) as to Channel placement."

In so doing, the ALJ's ruling gives very short shrift to First Amendment's protections for a speaker's editorial judgments. Newspapers, for instance, are protected from government intrusion on their editorial judgments about the numbers of pages for each issue, what sections they will include, what articles they will run, and what ads they will print. The U.S. Supreme Court's ruling in Miami Herald Publishing Company v. Tornillo (1974) recognized the protected status of such editorial judgments. It struck down a statute requiring newspapers to give equal space to political candidates to reply to published criticisms.

Here the ALJ tried to brush aside concerns about rights of editorial discretion. The ALJ asserted Comcast could still choose not to carry any of those three channels – but if it did choose to carry either of its affiliated channels then it would have to carry the Tennis Channel on similar terms. However, this attempted work-around won't work at all if First Amendment requirements are taken seriously.

The Supreme Court's political campaign speech rulings in Davis v. FEC (2008) and Arizona Free Enterprise Club's Freedom Club PAC v. Bennett (2010) held that First Amendment limits are not avoided just because government gives speakers the ability to avoid speech restrictions and penalties by abandoning or altering the content of their speech.

The conditional nature of the ALJ order's remedy also undermines any claim that restrictions on Comcast's editorial discretion are justified by its promotion of diversity and competition in the video programming market. How could the ALJ's order be said to promote programming diversity if Comcast drops the Tennis Channel along with its affiliated channels?

Lastly, it's worth considering that the entire program carriage regulatory framework stands on shaky ground. 1990s analog-era cable regulations were upheld from First Amendment challenge on the basis of a perceived local cable "bottleneck." But as I explained in my blog post "Video Competition Should Lead FCC to End Old Regulation," the days when cable providers enjoyed a 90% market share are long gone.

Cable's market share has fallen to about 60% of video subscribers. Two nationwide direct broadcast satellite (DBS) providers serve over 30 million. Telco entrants serve approximately 6.5 million. Meanwhile, online video delivery from websites or video gaming console apps via broadband offers explosive platforms for video programming. Availability of unaffiliated video programming to consumers has also grown. And the number of vertically integrated video programming has declined from more than 50% of all cable programming in prior years to less than 20% today. These rapid, disruptive changes in the video market belie bottleneck rationales for reducing free speech protections for MVPDs.

The Constitution sets the basic framework and limits on the implementation of the Communications Act. For the FCC, this means that First Amendment protections must be its first-order concern in reviewing Section 616 program carriage complaints like the Tennis Channel's. If the Commissioners take free speech protections seriously, they should reverse the ALJ's ruling.

Constitution Day at the FCC - Daily Caller

The Daily Caller has my piece, "Constitution Day at the FCC", which ends by urging that "everyday should be Constitution Day at the Federal Communications Commission."

Would that it were so.

Before it is, "the agency needs to understand the First Amendment was included in the Constitution to prevent government interference with private speech, not to authorize the government to interfere with private speech on the premise that it is enabling more important, balanced, or fairer speech."