Owning your creations: it’s part of the American dream. I happen to like the idea of being able to keep the fruit of your labor. However, sometimes that which we create takes on a life of its own, and while we may be able to benefit from what we create, we cannot own or control it, at least not without a large amount of force.
This is exactly the case when it comes to intellectual property. So long as we keep our ideas locked away, they are safe, and they are ours. But once they are released into the outside world, they can spread from person to person, without diminishing the original idea. It is also next to impossible to limit access to ideas, once they are out in the open. That is the very definition of a “public good.” Only when government steps in, and uses force to limit the use of ideas, does this change. And even then it rarely works. Programs, movies, etc are all shared constantly over peer-to-peer file sharing services, even with the massive threat posed by government.
But maybe the federal government has the authority to restrict information into being a private good. After all, the constitution does establish the power to manage patents and copyright law under Article I, section 8, clause 8. However, there may be a conflict between clause 8, and the first amendment. To see this, we need to understand the nature of the first amendment. It protects speech, press, and religion. The essence of the first amendment is to ensure that information can be exchanged freely. Copyright and patent laws both limit the ability to freely exchange ideas. And since the first amendment follows Article I, anything in the amendment supersedes it, as amendments to a contract or compact override any earlier stipulations, that would come into conflict with them.
This doesn’t mean that all patent and copyright laws are unconstitutional. When you purchase a book, piece of software, etc, you make a contractual agreement with another party, involving the intellectual property. You agree not to copy that information. The federal government can make that agreement implicit, and can create law which enforces that contract. In other words, if you copy a book and post it online, you can be charged with violating a contractual agreement with an author. However, if someone comes along and sees that copy, and then uses it or copies it again, since he made no such contractual agreement with the “owner” if the intellectual property, he should not be charged with any offense, as doing so would be a violation of the first amendment protection to the free exchange of information.