Mar. 8, 2021

Heritage Foundation Report: The Constitutional Protection of Intellectual Property by Adam Mossoff

Both Founding Era sources and 19th-century court decisions, official statements, and commentaries confirm that intellectual property rights are property as a matter of basic legal doctrine and constitutional principle. Yet the Supreme Court seems to have lost sight of its own decisions and other relevant authorities in interpreting and applying the protections afforded by the Due Process Clauses and Takings Clause to intellectual property rights. Despite this lack of reference to these long-standing precedents, the Supreme Court has still consistently protected intellectual property rights under the Constitution. It should continue to do so and should give its modern decisions a firmer grounding both in its own precedents and in the many historical sources from the Founding Era.