The Constitutional Foundations of Intellectual Property

Protection of intellectual property (IP) rights is indispensable to maintaining a vibrant economy, especially in the digital age as creativity and innovation increasingly take intangible forms. Long before the digital age, however, the U.S. Constitution secured the IP rights of authors and inventors to the fruits of their labors. The essays in this book explore the foundational underpinnings of intellectual property that informed the Constitution of 1787, and it explains how these concepts informed the further development of IP rights from the First Congress through Reconstruction. The essays address the contributions of figures such as John Locke, George Washington, James Madison, Thomas Jefferson, Noah Webster, Joseph Story, Daniel Webster, and Abraham Lincoln to the development of IP rights within the context of American constitutionalism.

Claims that copyrights and patents are not property at all are in fashion in some quarters. This book's essays challenge those dubious claims. Unlike other works that offer a strictly pragmatic or utilitarian defense of IP rights, this book seeks to recover the Constitution's understanding of IP rights as ultimately grounded in the natural rights of authors and inventors.

"A fascinating, illuminating and insightful exploration of the roots of intellectual property law in America. Essential for students, teachers and practitioners in the field. Intellectually sound and highly readable." — Theodore Olson, Solicitor General of the United States, 2001-2004

"The current proposals for copyright and patent reform are often stated in an impatient manner, as if there were only one side to a difficult problem. It is therefore refreshing to have this book by Randolph May and Seth Cooper that offers a careful and instructive exploration of the larger natural law foundations of modern intellectual property law and shows how the traditional concerns of the natural lawyers lend added weight to the soundness of the current IP system." — Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law

"Given the importance of the protection of intellectual property rights to our nation's economy and to innovation and investment, this book addressing the constitutional foundations and philosophical underpinnings of IP rights provides a valuable antidote to the all too prevalent and damaging populist view that 'information wants to be free.'" — Robert Atkinson, President, Information Innovation & Technology Foundation

"I loved the book, and I hope it finds a large audience. Over the years, I've had many people tell me my interpretation of the Constitution's Intellectual Property Clause was wrong. Hopefully, this new book by Randolph May and Seth Cooper, with its scholarly yet highly readable treatment, will refocus the debate about IP rights on first principles and our Founders' intentions." — Marybeth Peters, Register of Copyrights of the United States, 1994-2011

"This is an essential volume for anyone who cares about the Constitution and intellectual property. The Framers thought intellectual property was important enough to provide for its protection expressly in the Constitution. This book provides invaluable insights into the Framers' decision and should inform contemporary debates about the nature of that protection." — Paul Clement, Solicitor General of the United States, 2005-2008

"Randolph May and Seth Cooper have authored a welcome addition to the literature on intellectual property rights. Well-researched and clearly written, this book provides an invaluable historical perspective that will contribute significantly to the ongoing debates about the conceptual underpinnings of copyright and patent law." — Cary Sherman, Chairman and CEO of RIAA

"Finally, two talented authors add intellectual heft to the ongoing debate about the true nature of copyright—as an exclusive private property right, or as a limited right to be doled out stingily, riddled with exceptions and limitations, to be given away free-of-charge. It has become fashionable in some academic circles to treat copyright exclusivity as a quaint but outmoded notion, and its advocates as hopeless naïfs. But Mr. May and Mr. Cooper, by going back to first principles and natural rights, show us that an exclusive property right is at the heart of copyright protection. Their learned analysis should be widely read, especially by Members of Congress and judges, to help them understand the true nature of the debate and the deep roots of the copyright pedigree as a natural private property right—historically unique, socially revolutionary, and worth fighting for. Three cheers for Messrs. May and Cooper!" — Ralph Oman, Register of Copyrights of the United States, 1985-1993

"The natural rights approach that May and Cooper take has not disappeared entirely from copyright discourse these days. One hears hints of it in court opinions and policy statements, and a few intrepid academics write from such a perspective, including, for example, Adam Mossof and Mark Schultz, who are mentioned in the book's acknowledgements. But May and Cooper have written a thorough recitation of how copyright is justified under a natural rights theory and how that justification is reflected in US law—and a project of such scope is increasingly rare...May and Cooper have contributed an excellent primer on the natural rights justification for intellectual property rights in the US and its reflection in the Constitution and early American jurisprudence." — Terry Hart, Copyhype

"May and Cooper's book is written by academics for academics, though it is entirely accessible to any reader, if constitutional scholarship on intellectual property is your cup of post-revolutionary tea, so to speak." — David Newhoff, The Illusion of More