The constitutional foundations of intellectual property : a natural rights perspective / Randolph J. May, Seth L. Cooper.
2015
KF2980 .M393 2015 (Map It)
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Details
Author
Title
The constitutional foundations of intellectual property : a natural rights perspective / Randolph J. May, Seth L. Cooper.
Published
Durham, North Carolina : Carolina Academic Press, [2015]
Call Number
KF2980 .M393 2015
ISBN
9781611637090 (pbk.)
1611637090 (pbk.)
1611637090 (pbk.)
Description
xvi, 232 pages ; 23 cm
System Control No.
(OCoLC)910009468
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Gift
Purchased from the income of the Fisch Fund
Added Author
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Fisch Fund
Table of Contents
Preface
xiii
Introduction
3
An Account of Copyright and Patent Rights Rooted in Natural Rights Principles
3
Copyright and Patent Rights in the Framework of American Constitutionalism
6
Drawing upon Key Historical Figures, Authorities, and Events
7
A Sketch of the Book's Chapters
9
ch. 1
The Constitutional Foundations of Intellectual Property
15
Introduction
15
Government's Purpose: Protecting Natural Rights to Life, Liberty, and Property
16
The Natural Rights Basis of Locke's Political Philosophy
18
Locke on the Origin and Broad Meaning of Property
20
Locke in Relation to Other Transmitters of Natural Rights Concepts
21
Jeffersonian and Madisonian Adaptations of Lockean Natural Rights Concepts
23
Intellectual Property: Safeguarding the Fruits of One's Labor in Civil Society
26
Intellectual Property as Constitutional Law
27
Conclusion
28
Sources
28
ch. 2
Reasserting the Property Rights Source of Intellectual Property
31
Introduction
31
Intellectual and Physical Property Are Both Encompassed Within Classical Liberalism's Broader Understanding of Property
33
Classical Liberalism's Narrower Understanding of Property
34
Blackstone on Property's Origins in the Laws of Nature and Laws of Society
35
Intellectual and Physical Property Share the Same Institutional Role in Defining and Limiting Governmental Power
37
Despite Differences, Intellectual and Physical Property Share the Same Source
38
A Property Rights Approach to Intellectual Property Reform
39
Conclusion
41
Sources
41
ch. 3
Literary Property: Copyright's Constitutional History and Its Meaning for Today
43
Introduction
43
Webster's State Copyright Quest
44
Virginia's Copyright Law: Webster and Madison Joined in Alliance
47
Protecting Literary Property: Copyright During the Articles of Confederation
48
Copyright at the 1787 Constitutional Convention
49
Copyright and Constitutional Ratification
50
Conclusion
51
Sources
51
ch. 4
The Constitution's Approach to Copyright and Patent: Anti-Monopoly, Pro-Intellectual Property Rights
53
Principled Differences Between Government Monopolies and Individual IP Rights
54
The British Backdrop to American Anti-Monopolistic Understanding
56
The Anti-Monopolistic Spur to the American Revolution
58
Anti-Monopoly, Pro-IP Rights: The Constitution's Approach to Copyright and Patent
59
The Constitution's Structural Safeguards Against Monopolies
60
Literary Property and Liberty of the Press: Copyright and the Free Press Clause
61
Conclusion
64
Sources
64
ch. 5
The "Reason and Nature" of Intellectual Property: Copyright and Patent in The Federalist Papers
67
The Federalist and Its Constitutional Legacy
69
Federalist No. 43 on Congressional Power, Copyright, and Patent
71
Federalist No. 43: Natural Right as the Reasoned Basis for IP Rights
72
Confusion Surrounding British Common Law Copyright
72
Explaining Madison's Reference to Common Law Rights of Authors
74
Madison's Appeal to the Reason and Nature of IP Rights
76
"Utility to the Union" in The Federalist
77
The Utility to the Union of a Congressional Power to Protect IP Rights
77
The Public Good: Rights of Liberty and Property in the Interests of All, According to the Rules of Justice
79
Social Utility Under The Federalist's Natural Rights Framework
81
Conclusion
82
Sources
83
ch. 6
Constitutional Foundations of Copyright and Patent in the First Congress
85
Introduction
85
The First Congress's Constitutional Precedent-Setting Role
87
Constitutional Credentials of the First Congress's Membership
89
The First Congress as Authority on Constitutional Meaning
89
Copyright and Patent in the Context of the First Congress's Critical Agenda
91
Legislation in the First Congress as the Culmination of Concerted, Long-Term Efforts
92
First Congress's Record Confirms IP's Fit in the American Constitutional Order
93
Basic Principles Prevail over Particulars in Considering the First Congress's Precedents
95
The First Presidential Administration's Impact on IP Policy in the First Congress
96
The First Congress's Consistency on Copyright and Free Speech
97
Conclusion
100
Sources
100
ch. 7
Life, Liberty, and the Protection of Intellectual Property: Understanding IP in Light of Jeffersonian Principles
103
Jefferson's Private Letters on Intellectual Property
105
Jefferson's Exaggerated Opposition to IP and Peripheral Influence on Constitutional IP Policy
106
IP Rights in Light of Jefferson's Philosophy of Constitutional Government
110
IP in Light of Jefferson's Philosophy of Public Administration
115
Conclusion
117
Sources
118
ch. 8
Intellectual Property Rights Under the Constitution's Rule of Law
119
The Rule of Law in the American Constitutional Order
122
IP's Consonance with American Constitutionalism and the Rule of Law
127
Rule of Law Implications of IP as a Constitutionally Protected Property Right
128
Due Process of Law
128
Equal Protection of the Laws
129
No Takings for Public Use Without Just Compensation
130
Vested Rights
131
Conclusion
132
Sources
133
ch. 9
Reaffirming the Foundations of Intellectual Property Rights: Copyright and Patent in the Antebellum Era
135
The Natural Rights Basis for Private Property in the Antebellum Era
138
Antebellum Legal Treatises Reflect Property Rights Understanding of IP
143
Antebellum Copyright Jurisprudence Reinforces a Property Rights Understanding of IP
145
Antebellum Patent Jurisprudence Reinforces the Property Rights Understanding of IP
149
Antebellum Legislation Bolsters Copyright Protections
153
Antebellum Legislation Bolsters Patent Rights Protections
157
Jacksonians Recognized the Constitution's Distinction Between Monopolies and IP Rights
159
Conclusion
161
Sources
161
ch. 10
Adding Fuel to the Fire of Genius: Abraham Lincoln, Free Labor, and the Logic of Intellectual Property
163
The Importance of the Civil War and Reconstruction to an Understanding of America's Constitutional Order
166
The Free Labor Logic of Intellectual Property Rights
168
Lincoln and Free Labor
169
Lincoln the Pro-Entrepreneur, Pro-IP Whig
170
Lincoln the Pro-IP Republican
171
Property in Men as an Inversion of Liberty and Self-Ownership
174
"Freedom National" as a Policy Program for Liberty and Property
176
Rolling Back Dred Scott's Rule on Intellectual Property Rights
178
Intellectual Property Rights Under Reconstruction
179
Implications of the Civil War Amendments for Intellectual Property Rights
183
Conclusion
183
Sources
184
Bibliographical Essay
187
About the Authors
205
Index
207