Monday, July 6, 2009
Speech rights and innovation
I am working on a paper for a special issue of The Monist, forcing myself to refine and expound on themes I have developed in the past about artifice and expression. In the course of it, I have come to see the strength of the ACLU's arguments about free speech. They are quite technically right, and we should acknowledge that intellectual property is a governmental interference with speech rights. It might well be one we are willing to endure, like so many other speech rights we have chosen to let the government curtail, but it is simply a governmental restriction on speech. If you own the copyright of a song, you are granted a monopoly, by the grace of the sovereign, over that song for an obscene (see above) period of time. During that time, I cannot record your song, even with my own creative arrangement of instruments or voices, or editing of the lyrics, without paying you for that pleasure. So, my speech has been restricted. If we take the court's current, small "l" liberal interpretation of what constitutes speech then I'd argue that building a machine, which after all expresses an idea (brings an idea into the physical world outside of a mind) is as much a matter of free expression as sculpting a statue could be argued to be. Patents limit my right to express certain ideas, just as do copyrights. One way to get beyond the implications of these restrictions is to make IP all a matter of private contract: agreements between authors/inventors and end users, without the institutional necessities of government (except, maybe, the courts in case of breach). This is precisely what is going on with the use of copyleft, creative commons, open source, and other forms of licensing that avoid traditional IP laws. Seems to me that this sort of private alternative to big government bureaucracy ought to appeal to conservatives... if there are any left.