Freedoms First: What Makes American Free Enterprise the Envy of the World

If you ask a passerby if they can sum up America in one word, what is likely to come to mind is “freedom.” Freedom of religion. Freedom of press. Freedom of speech. Freedom of enterprise. Senator Patrick Leahy (D-VT) recently discussed these freedoms with a speech addressing the symbiosis of intellectual property rights and open expression:

America should be a beacon for free speech throughout the world, and our system is rightly held up as a model for others.  We have long recognized, however, that the First Amendment cannot be used as a shield for certain illegal activity.  For instance, our courts have held that it is illegal to engage in fraud and the First Amendment cannot be used to justify it.

Our Constitution is the source of another example – the protection of intellectual property.  The only place in the Constitution as initially ratified that specifically mentions a “right” is in the intellectual property clause, which authorizes Congress to provide authors with the exclusive right to their works.

Copyright protection is not inconsistent with free speech.  It actively advances the goals of the First Amendment by supplying the economic incentive to create and disseminate ideas.  Justice O’Connor famously wrote that copyright law is the very “engine of free expression.” 

The opposite is also true.  Allowing unfettered theft of copyrighted works, whether online or in the physical world, is a disincentive to speech.  This is most often thought of as a problem for the music or movie industries. But the news organizations represented here also know that if their work cannot be protected and monetized, they have to cut reporters and editors, and our democracy suffers from fewer sources of quality news reporting and ideas as a result. 

I will continue to promote the Internet but also want to protect the rights of creators in their works, so that there is more expression available for all of us to consider and consume.  This protection for copyrighted works must exist in both the physical and the digital worlds. 

Just as fraud is illegal whether it occurs on the street or online, so is the theft of someone’s work, whether it is a song, a movie, software, or a news report.  The Internet needs to be free, but not lawless.  There is no First Amendment right to steal.

Oftentimes mistaken for being at odds, Senator Leahy appropriately points to the Constitution as the source for both the protection of free speech and of creative works. Whether it is physical, intellectual, or digital – property is property. We as Americans, innovators, and businesses entrust that the government and others will respect our freedoms and our rights, including our rights to our creations. This is what makes America free. This is also what makes American free enterprise the envy of the world.

Of course, we all recognize that governance must strike the right balance. Markets do not succeed in an atmosphere of lawlessness or when faced with overbearing regulation. When the private sector can address problems without government intervention, that is even better.

This type of collaboration is why GIPC is encouraged by the recent voluntary efforts to address online piracy through educational outreach to consumers. The Copyright Alert System, a result of years of negotiations between Internet and content companies, is a moderate, reasonable way to inform consumers if they are running afoul of others’ Constitutionally-protected property rights. The system has built-in safeguards and is overseen by privacy and consumer advocates.

When we can work together to enhance the Internet, freedom, and free enterprise, everyone wins.

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