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Our forgotten Constitutional right -- intellectual property protection

On Monday, September 17 the United States celebrates the 225th anniversary of the signing of the U.S. Constitution. A landmark document, this first in the world written expression of the rights of man and the responsibilities of government set a standard for legitimacy to which the rest of the world, democratic and otherwise, now aspires.

The focus of any discussion of Constitutional rights usually focuses on the limitations placed upon its power by one of the first ten amendments to the Constitution, known collectively as “The Bill of Rights.” There are, however, other specifically enumerated rights laid out in the main body of the Constitution that sometimes go unnoticed. One of those is the protection of copyrights and patents, or what we now call “intellectual property.”

The Founding Fathers understood that these rights were an important part of the overall need to protect the right to obtain and hold property necessary for the new nation to grow and prosper economically. Here is the exact text: “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 growth of the Internet has not only transformed the global culture, it has put intellectual property rights and protections for creators of Internet content at the forefront of the current political debate. Much of the fast pace of that transformation results from the fact that the Internet has been generally free of regulation and censorship, freedoms generally recognized as a good thing.

These developments must continue – but at the same time, there’s increasing evidence of a need to establish some rules of the road, particularly where issues like intellectual property are concerned. Particularly among some of my friends in the conservative movement, embracing “Internet freedom” as an absolute value has begun to drift from an embrace of liberty into countenancing lawlessness.

The ability to copy digitally has permitted increasingly sophisticated forms of counterfeiting. Existing protections need to be updated. All over the world, websites provide counterfeit goods for sale, ranging from computer software to movies to handbags to pharmaceuticals, often masquerading as the real thing. It’s at least a billion dollar industry, a billion dollar criminal enterprise that operates at the expense of hard-working, innovating, taxpaying Americans. It costs the U.S. economy jobs and tax revenues that instead go into the pockets of criminals.

We must combat this international problem. This means breaking some new ground – which should only be done with careful consideration, respect for liberty, and adherence to our most cherished principles of governance.

The framers understood this. The current Congress should understand it as well. Working on a bi-partisan basis, they produced two bills earlier this year– the PROTECT IP Act in the U.S. Senate and the Stop Online Piracy Act (SOPA) in the U.S. House of Representatives – to protect U.S. generated intellectual property from those who traffic in pirated goods.

These bills were defeated in a flurry of misinformation and misdirected concern. It is certainly true that these bills, as is the case for almost any piece of legislation, could have been improved and may have gone too far. Nevertheless, the expressed concerns of many conservatives and libertarians that they posed a threat to liberty and the First Amendment in their efforts to limit lawlessness on the Internet freedom were, I believe, overstated.

It is the function, indeed it is the obligation, of government to put an end to lawlessness, but it must do so within the context of due process and the other constitutional protections we are all afforded.

Protecting intellectual property is in fact a property rights issue. Protecting free speech is not the same as stopping the outright theft of another's property. It's the difference between liberty and lawlessness. We must be in favor of the former and opposed to the latter. 

On this Constitution Day, we should begin to rethink the protection of intellectual property rights on the Internet not as a limitation of Internet freedom, but rather as a logical contemporary interpretation extension of the basic Constitutional rights of authors, scientists and inventors that our Framers set forth so plainly two and a quarter centuries ago.

Colin Hanna is president of Let Freedom Ring, a Pennsylvania-based organization advocating for a constitutional approach to public policy making.