Legal scholar Stephen Kinsella argues a fascinating line of thought I haven’t seen before: the entire copyright monopoly in the United States may actually be unconstitutional.

In the comments field of my recent column on Techdirt, Stephen Kinsella argues that the entire copyright monopoly is unconstitutional. What’s more, he appears to have a solid base for that reasoning. Not only is he a patent/copyright monopoly attorney since two decades, he is also active in the monopoly debate.

His reasoning goes like this:

The copyright monopoly is a limitation of freedom of speech. If I write a poem, you are legally prohibited from reciting that poem in public or to a stranger, because of my copyright monopoly on that poem. Therefore, it is clear that the copyright monopoly is a limitation on freedom of speech.

The part of the US Constitution that allows the US Congress to enact copyright monopoly laws, thusly limiting freedom of speech, was in the original Constitution.

However, that constitution has been amended many times. And here’s the important part: a later amendment takes precedence over earlier constitutive text. A clear example is how the 21st amendment of 1933, which lifted alcohol prohibition, overrides the 18th amendment of 1921, which enacted the same.

Thus, we have shown that: 1) a later amendment supersedes earlier text of the constitution, and 2) the copyright monopoly restricts freedom of speech, and 3) the part of the constitution that gives Congress the right to enact copyright monopoly laws was in the original text of the US Constitution. I think you can see where this is going.

Specifically, it is going to the First Amendment enacted in 1791, which says,

Congress shall make no law … abridging Freedom of Speech …

The conclusion is as startling as obvious: the First Amendment revoked Congress’ right to enact copyright monopoly laws, and that has just never been tried in a courtroom.

He has written a longer article on the subject. This is something I haven’t seen used as a defense in copyright monopoly cases in the United States, and I’d love to see it tried. While the ramifications would be immense, courtrooms should always practice consequence neutrality.