> it is not because the Founders thought it was a fundamental, inalienable right, it is because IP is a pragmatic solution to a practical problem: how do you encourage people to put forth the effort required to invent things and create art?
Is this accurate? Many of the early thinkers applied Lockean property theory to intellectual property and we have many of them referring to it as a right. John Locke himself thought that his theory justified intellectual property rights, even before the particular legal concepts of patents and copyrights existed. Whether or not you agree with Locke, it seems false to claim that those who created IP laws in the U.S. would not have been influenced by such thinking.
In fact, many early US court cases used Lockean property theory to justify patents and copyrights, suggesting that they did not view it as just a pragmatic solution to the problem you bring up, but a fundamental right.
Here's one recent source to justify what I am claiming:
I'm sure some people back then believed in IP as a fundamental right, just as some do today. But the authors of the Constitution manifestly went out of their way to distinguish between physical and intellectual property, and to constrain IP protection in ways that physical property protection is not. I haven't read Locke so I can't speak to that. However:
> we have many of them referring to it as a right
It is a right (re-read the text: "... to secure ... the exclusive Right to...") but it's not a fundamental right. Not all rights are created equal. There are fundamental rights (sometimes called "recognized" rights) which are the inalienable rights to which men are endowed by their Creator (to use the terminology of the Declaration). These exist independent of any law. Then there are other "granted" rights, which exist because a law has been passed. For example, the right to vote is a granted right in the U.S., not a fundamental right. Granted rights can be taken away by changing the law. Recognized rights can't. At least that's the theory.
Is this accurate? Many of the early thinkers applied Lockean property theory to intellectual property and we have many of them referring to it as a right. John Locke himself thought that his theory justified intellectual property rights, even before the particular legal concepts of patents and copyrights existed. Whether or not you agree with Locke, it seems false to claim that those who created IP laws in the U.S. would not have been influenced by such thinking.
In fact, many early US court cases used Lockean property theory to justify patents and copyrights, suggesting that they did not view it as just a pragmatic solution to the problem you bring up, but a fundamental right.
Here's one recent source to justify what I am claiming:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1983614