Executive Summary
Current intellectual property laws constitute an “anti-constitutional” barrier to the transformative potential of artificial intelligence (AI), systematically frustrating the explicit purpose of the Intellectual Property (IP) Clause. Through detailed analysis of AI's capacity to democratize knowledge creation and dissemination—from personalized education tools to accelerated scientific discovery—this Article demonstrates how copyright restrictions on training data and patent thickets around foundational technologies prevent the very progress the IP Clause was designed to foster.
The analysis develops a framework of “anti-constitutionalism” that identifies constitutional shortcomings, distinct from clear textual violations, that emerge from governmental actions that technically comply with legal requirements while systematically undermining constitutional purposes. Here, the purpose in question is the spread of knowledge that animated the decision of the founders to include the IP Clause. Drawing on the history of that clause, which reflected resource constraints facing the founders more so than their preferred policy approach, and on the House Report accompanying the 1909 Copyright Act, which declared that congressional acts failing to promote progress “would be beyond the power of Congress,” the Article establishes that the constitutional legitimacy of IP laws depends on their actual impact on the innovation ecosystem.
Given that the limitations that drove the founders to select grants of exclusive rights as their vehicle to encourage innovation have largely disappeared, it is now time to consider alternatives to achieving the underlying purpose of the IP Clause--and, more specifically, approaches better suited to AI’s collaborative, iterative development processes. Focusing primarily on prize systems as the most promising constitutional substitute, the Article demonstrates how targeted incentives could promote beneficial AI development while eliminating the access barriers inherent in exclusive rights frameworks.
While acknowledging the need for extensive empirical validation, the Article contends that continued adherence to demonstrably counterproductive IP frameworks represents not mere policy disagreement but constitutional betrayal. The stakes include the short- and long-term trajectory of AI development as well as the fundamental relationship between governmental power and constitutional purpose that undergirds American democratic governance, demanding urgent reform before transformative technological opportunities are lost to institutional inertia.
