The purpose of this paper is to recanvass what is surely old and familiar territory about the defenses, if any, that can be made for various forms of intellectual property—and for the purposes of this conference, particularly copyright—as a matter of both natural law and utilitarian theory, broadly conceived. In dealing with this issue, it is important to note that within the Lockean tradition, the function of representative government is to protect the lives, liberties and estates of the individuals who, as subjects or citizens, are subject to the exercise of state power. There is little doubt that this formulation of the matter has exerted profound influence over the structure of American thought and constitutionalism. For instance, it is not necessary to look any further than the two constitutional commands that provide that no individual be deprived (by either state or national government) of life, liberty or property without due process of law. For these purposes there are two elements of this formulation that deserve some brief mention. First, the phrase “without due process of law” has been long, if controversially, understood to cover situations in which individuals are deprived of life, liberty or property without just compensation. In this regard, the due process clauses mirror the more specific language of the takings clause, which provides “nor shall private property be taken for public use, without just compensation.” But for our purposes, the more important claim within this clause is the ostensible parity between liberty and property in the constellation of constitutionality, and by implication, political values.
Date of Authorship for this Version
liberty, natural law, copyright,
Epstein, Richard, "Liberty versus Property? Cracks in the Foundations of Copyright Law" (2003). Fordham Law Faculty Colloquium Papers. Paper 5.