Intellectual Property is America’s Bedrock
By Phil Kerpen
Elon Musk is probably the second-most powerful man in the world these days, so when he responded to Twitter co-founder Jack Dorsey’s “delete all IP law” post with “I agree,” we need to take this radical proposal seriously. Musk and Dorsey want their AI bots to remix all the world’s content without having to worry about who owns it, but it’s important that we slow down and start from first principles or we risk undermining one of the foundations of our Constitution and economic system.
The moral case for IP was already powerfully articulated prior to American independence by John Locke. In his 1694 memorandum opposing the renewal of the Licensing Act, Locke wrote: “Books seem to me to be the most proper thing for a man to have a property in of any thing that is the product of his mind,” which is no doubt equally true of more modern creative works. Unlike physical property which is a mixture of an individual’s work effort and the pre-existing natural world, creative works are the pure creation of the human mind. How could they not then properly be owned by their authors?
The Constitution cements this truth. Article I, Section 8 empowers Congress “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This clause isn’t incidental; it’s a deliberate choice to recognize inventors and authors properly have a property right in their creations and is the only right expressly protected in the base text of the Constitution, before the Bill of Rights was added.
In Federalist No. 43, James Madison said “the utility of this power will scarcely be questioned.” He continued: “The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals.”
Denying creators ownership over their ideas violates their natural rights, handing their work to those who contribute nothing. If we deleted all IP law, this fundamental principle would fall by the wayside, and anybody’s work could be copied by anyone–resulting in less creation, costly trade secret measures, and a thicket of contract law to mimic IP protections, bogging down courts and businesses even more than our current system.
The economic consequences of deleting all IP law would be severe.
In 2019, IP-intensive industries drove 41% of U.S. GDP and supported 62.5 million jobs–44% of total employment–with better wages and benefits than non-IP sectors.
The U.S. Patent and Trademark Office received 669,000 patent applications in 2022, 35% from small and medium-sized enterprises, proving IP empowers entrepreneurs.
In AI, the U.S. led with 67,773 patent applications in 2024 and ranks first globally in AI innovation, per Stanford’s AI Index.
Our third-place ranking in the 2024 Global Innovation Index, with leadership in citable documents, software spending, and intangible asset intensity, underscores this strength.
Without IP, these achievements falter. Why would a startup invest in R&D if competitors could steal their breakthroughs? Why would a writer or artist create if their work could be copied without compensation? New medicines can cost billions to develop and bring to market, but who would develop them without IP?
Musk’s frustration no doubt is related to the real problems of our IP system, like patent trolls and excessive litigation along with a lack of clarity on the implications of using copyrighted works as AI training materials. But the solution isn’t to dismantle protections; it’s to adopt key reforms like loser-pays, simplify the processes of IP enforcement to curb abuses, and develop a framework for AI that serves both creators and the public. Deleting all IP law is like banning free speech to stop misinformation – it might narrowly accomplish its goal, but only by destroying what we ought to be protecting.
America’s global leadership has never been based on low-cost labor or mass-produced conformity – it has been rooted in unmatched innovation. IP protections, grounded in the Constitution, are part of the bedrock of that success. The Trump administration should defend our intellectual property interests abroad, not weaken them at home