But you can't have inherent rights to something privately created by someone else.
You keep saying that, but you don't provide any basis for it.
I find Jefferson more convincing than you (the subject matter of the letter was inventions and patents, but it's just as applicable to speech and copyrights):
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who
receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.
Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body.
There's no actual requirement that anyone's creative work ever enter the commons.
Yes! There's not even such a statute in copyright law, placing a work in the commons. But we know that works not copyrighted are in the commons. The only solution then is that they must be in the commons already, and copyright, while it applies, withdraws them from it.
Because if I fail to perform our agreement by not giving you access to the work, your alleged "free speech" right does not give you any power or cause of action against me.
That's because 1) there's a general preference against specific performance; 2) it would infringe on your free speech right to compel you to create a work or to share it. Of course, it does not infringe on your free speech right for others to share it, however they acquired it.
What you're saying is akin to claiming that I have an inherent right to walk through your yard
A funny choice of analogy, given that property law is just as artificial as copyright law. In fact, I'd say that you do have an inherent right to go through my yard, but that this has been withdrawn. Due mainly to issues of rivalry and tradition, my exclusive right in my yard doesn't evaporate after a period of time, as copyrights do. But certainly the only thing that can keep you out, or that can be used to seek damages from you if you've gone through, is a system of law that is founded, ultimately, on having groups of people mutually agreeing to respect one another's claims because they find it useful. I think it supports my argument pretty well.
I had to give you a copy in order for you to lodge any memory of its contents.
No, no, what I was saying was that I never redistributed any copies you made. A copy, as a tangible object in which a work is fixed (e.g. a paperback book, or a metal sculpture) is clearly personal property. If I made a second copy, however, you don't have a property claim in it, and cannot assert one in order to prevent me from sharing it. In the hypo there was no copyright, so you can't claim it was unlawfully made. Which again leaves you with breach.
