Individual Innovators' Legal Rights

In the United States, individuals have fundamental legal rights to engage in free innovation development, to use their innovations, and to publicly disclose and discuss them. These rights are embedded in both the common law and the United States Constitution (Torrance and von Hippel 2015).

The common law is a body of legal principles that continuously evolves from customary practices and the decisions of courts. A fundamental principle of the common law that supports individuals' rights to innovate is the principle of "bounded liberty”: that in the absence of specific and legitimate prohibitions, people are at liberty to act however they choose. However, that liberty is bounded in the sense that people are at the same time restricted from taking actions that materially harm others. Thomas Jefferson (1819) stated that "rightful liberty is unobstructed action according to our will, within limits drawn around us by the equal rights of others.” Later, the First Amendment scholar Zechariah Chafee, Jr. (1919, 957) stated the same idea more vividly as " [the] right to swing your arms ends where the other man's nose begins.”

With respect to innovation, the common law principle of bounded liberty informs us that individuals have a right to engage in innovation without needing permission from other people or from governmental entities provided that their actions are not unreasonably dangerous to others and do not violate specific and legitimate legal prohibitions.

Individual innovators are also shielded by robust rights to privacy derived from common law, statutes, and, in the United States, the United States Constitution. This right to privacy provides formidable protection against intrusion, particularly governmental intrusion. It enables people to innovate in privacy in ways that might be controversial if known, and to go through early learnings and failures protected from immediate public scrutiny. In his classic textbook on tort law Thomas Cooley (1879, 29) provided an early description of a common law right of personal autonomy: "The right to one's person may be said to be a right of complete immunity: to be let alone.” Later, the legal scholars Samuel Warren and Louis Brandeis (1890) formally proposed, and helped to establish the existence of a constitutional right to privacy.

Individuals in the United States also have robust rights to innovate collaboratively and to diffuse information about their innovations to others openly. These rights are guaranteed by the First Amendment to the Constitution, which states in Article 1 that "Congress shall make no law ... abridging the freedom of speech, or of the press; of the right of the people peaceably to assemble.” That amendment, through incorporation by the Fourteenth Amendment, also prohibits state or local governments from creating laws abridging freedom of speech. Protected by these rights, free innovators can get together physically or virtually, and can collaborate by exchanging information on work in progress. They can also diffuse their designs and their observations regarding their functioning to any and all, absent a compelling governmental need such as national security.

Taken together, the legal rights just described create a powerful shield for those wishing to pursue free innovation either singly or collaboratively and to diffuse their designs and findings freely and widely.

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