SOPA and PIPA unconstitutional

The recent opposition to two bills, the House Stop Online Piracy Act (SOPA) and to the Senate Protect IP Act (PIPA) has made almost exclusively policy arguments. There have been a few mentions of the First Amendment being violated, but there is a lack of discussion of how the bills would exceed the authority of Congress under the Constitution as originally understood, even without the First Amendment.

Let us examine the provisions of the Constitution upon which patent and copyright statutes are based:

Art. I Sec. 8: "The Congress shall have Power ... "

Cl. 3: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

Cl. 8: "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;"

Cl. 10: " To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;"

Cl. 18: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Art. II Sec. 2 Cl. 2: "[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;"

So how does one get from these provisions to statutes that make the "theft" of "intellectual property" a crime, and in particular, "piracy"? The answer is, one can't.

It is a reasonable interpretation of Clause 8 to recognize a copyright in a "writing" or a patent in a "discovery". However, it is a stretch to extend "writing" to other forms of artistic expression. It is also a stretch to extend "limited times" to the lifetimes of the "authors and inventors". Clearly what the Framers had in mind were short periods of time, just long enough to enable the author or inventor to make a profit on his investment, and no longer. The original standard for that was 14 years, extendible in rare cases to 28 years.

But does the power to "secure exclusive right" confer a power to impose criminal penalties? No. Only to establish a civil claim the offended party could pursue in court. The powers to "promote" and to "punish" are two different kinds of powers, and Clause 18 does not authorize the exercise of a different kind of power for "carrying into execution" some power. That is only to make a certain kind of effort, not to do whatever might seem likely to achieve a desired outcome. It is only to do incidental administrative things.

This point is emphasized in these excerpted words of Thomas Jefferson, enacted by the unanimous vote of the Kentucky House of Representatives, November 10, 1798:

2. Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the laws of nations, and no other crimes whatever, and it being true as a general principle, and one of the amendments to the Constitution having also declared, "that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people ;" 

That means there is no power to make it a crime to commit "theft" of "intellectual property".

What about "piracy"? Congress has power to punish that, but from the usage of the term "piracy" in 1787 we get that it  consisted of warlike acts by a nonstate actor against parties foreign to him. There had to be an element of violence, and it couldn't be against someone from the same country. Misappropriation of copyrighted or patented things might be objectionable, but that is not "piracy".

What about the treaty power? Can Congress or the President acquire a new power by entering into a treaty with a foreign nation to exercise that new power? No. This was discussed in Reid v. Covert, 354 U.S. 1 (1957):

The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.

There is no authority in the Constitution to make theft a crime on state territory. Arguably, Congress might have that authority on territory to which it has exclusive legislative jurisdiction:

Art. I Sec. 8 Cl. 17: "To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;"

Art. IV Sec. 3 Cl. 2: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States;"

So one might plausibly argue that Congress has authority to make copyright or patent infringement a crime within federal enclaves or in nonstate territories, but not within state territory, or outside the United States. Again, from Reid v. Covert:

This Court and other federal courts have held or asserted that various constitutional limitations apply to the Government when it acts outside the continental United States.

Clearly, therefore, Congress has no authority to make it a crime to infringe on copyrights or patents except perhaps within a few small territories. But what about infringements that extend into such territories from outside them?

Art. III Sec. 2 Cl. 3: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

That means territorial jurisdiction is limited to the location at which the crime has been "committed", but what did that mean? It meant the concurrence of mens rea and actus reus, the point at which the criminal act became irreversible, not the location where harm may have been caused, if the harm was caused in a different territorial jurisdiction. See Conflict of Criminal Laws, Edward S. Stimson (1936). That means an offender may only be constitutionally prosecuted for a crime he did while within territory where the statute making it a crime applies.

While we are on the subject, we may as well cover trademarks, the third kind of "intellectual property". What is the authority for protecting those, since they are not really "writings" or "discoveries"? The authority cited is not Art. I Sec. 8 Cl. 8, but Cl. 3, the Commerce Clause. Now "commerce" was not a word commonly used in the United States before 1787. It is a French word, and the authority usually cited is the Swiss scholar Emmerich de Vattel, who in The Law of Nations (1758), Book I § 92, defined it:

... commerce consists in mutually buying and selling all sorts of commodities.

Not economic activity in general, only the transfer of title and possession for a valuable consideration of physical objects. And commerce "among the states" would be from a seller outside a state to a buyer within it. The power to regulate such trade would extend to things like labeling, which could include trademark symbols, but the power would not commence until the sale was initiated and would end when the item was delivered and accepted.

The original meaning of the power of Congress to protect "intellectual property" is extremely limited, and if we don't want our rights trampled we need to hold it strictly to that original meaning, without exception. If those claiming intellectual property want Congress to have more power to protect it, then they should propose and support amendments to the U.S. Constitution.