Adam Mossoff: The American IP System

If "intellectual property" was a natural right then it could not be limited in duration. Natural rights are never limited in duration! Our physical property rights never expire, but "intellectual property" must!

The Constitution says the purpose of the exclusive right is to promote the progress of science and the useful arts, not to secure the property or even the moral rights of authors and inventors. If "intellectual property" wasn't a government-created monopoly but was instead a natural right then it would be covered by the same clauses covering all other property. The fact that it has it's own clause which is disassociated from how property in general is treated shows how different it is in the Constitution from physical property.

Copyrights, patents and trademarks are in fact government-created artificial monopolies, not natural rights. There is nothing in the natural law saying that one man cannot learn from another and start doing the same sort of thing in imitation, or even outright duplicate the same actions, products, processes etc. We only prohibit this in certain circumstances on a pragmatic basis, not on a natural law basis, and the level of legal restrictions have gone far beyond what is in of copyright, trademark and patent laws. Author's death plus 97 years plus the possibility (inductively a near certainty) of an indefinite number of additional retroactive extensions by Congress is not in any sense a "limited time". Extreme draconian restrictions on derivative works are not restricting the exclusive right to "their respective writings and discoveries". Software patents in particular are blatantly absurd and work directly against innovation. Software should be protected by copyright, not patent, and the copyright should not last longer than a few years commensurate with the fast pace at which technological innovation moves.