while the common law undoubtedly protected the right to one’s unpublished writings — e.g. a diary, personal letters
This is why Madison primed his audience to understand the clause as empowering Congress to secure a natural right (by saying that copyright had been adjudged as a common law right), because securing the individual’s (natural) rights was the whole point of instituting a government in the first place.
So, per the Constitution, Congress has power to secure the author’s exclusive right to their writings, and on the same basis, the inventor’s exclusive right to their designs, but not to grant transferable reproduction/manufacturing monopolies (for immortal corporations to consequently amass into an arsenal). Copyright (nor patent) does not secure a natural (aka common law) right, despite Madison saying copyright (& patent) had been adjudged to be a common law right.
Today, copyright is described as an ‘exclusive right’ precisely in order to hoodwink people into believing it to be the right that the Constitution empowered Congress to secure. But of course, the Constitution cannot empower Congress to secure a right that doesn’t already exist – only to secure one that does, or to grant a privilege (which would have been rejected by other Framers as antithetical).
Thus you will see lawyers carefully seguing from author’s exclusive right to copyright without actually declaring them to be the same thing. You can see Annemarie making statements about ‘Exclusive rights’ (in the sense of legislatively created ‘rights’) and then statements about ‘copyright’, but she didn’t actually say a) that copyright was the exclusive right the Constitution empowered Congress to secure, nor b) that copyright secured an author’s exclusive right to their writings.
It is amazing how many people think the progress clause clearly empowered Congress to grant/create copyright, even though, from Madison’s own explanation, the clause is intended only to empower Congress to secure an author’s common law right – because Madison knew that’s all the power he/Congress would need to legislate copyright/patent – because he’d already primed the other Framers with the understanding that copyright and patent were common law rights.
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.
Hence Congress can secure common law rights – not grant monopolies – even though Madison knew copyright and patent weren’t common law rights and were obviously grants of monopoly.
While Madison may insinuate monopolies are common law rights to Framers en masse, when it comes to discussions with a conspirator, Jefferson, he reveals he knows precisely what he’s talking about, i.e. monopolies, and that they are privileges to be granted:
With regard to monopolies they are justly classed among the greatest nusances in Government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases a right to the Public to abolish the privilege at a price to be specified in the grant of it?
Corruption from the start, that even Madison acknowledged, that thanks to his weakness, we enjoy today – cultural and technological gridlock.
Making stupid laws and insisting that people pretend they're not stupid, and observe them as if they are sensible, is corruption. It is not mad to exploit popular respect for the law (and gullibility) to get stinking rich.
What's mad is recognising how stupid copyright is and still insisting that copyright should continue to exist, that it can somehow be 'repaired' to enable artists to control what people do with their work without being exploited as a monopoly and means of censorship.
JP Jones, as another Red Pill taker, perhaps you have an insight as to why people, who clearly recognise copyright makes no sense, still cling to the belief that it remains somehow necessary?
It's like a child who recognises that stabilisers can't be necessary for cycling, indeed, would interfere with it, still cannot believe they will remain upright if stabilisers are removed from their own bicycle.
Perhaps it's more like a cigarette addict, who, on an intellectual level accepts the damage and impairment smoking causes, nevertheless on an emotional level insists that they cannot function properly without them (despite so many people clearly doing so).
So, when people seem to be saying "OK guys, this crutch obviously makes no sense, but there has to be some way to improve it" you wonder whether they're asking for assistance in giving it up, or assistance in finding an excuse to continue with it.
Understanding why copyright is unethical, unviable, unenforceable, unnecessary, unjust, uneconomic, etc. is a cinch compared to understanding why people find any extent of such understanding still doesn't warrant copyright's abolition - as if it would be some kind of apostasy.
Greevar has opted for the Red Pill, rather than the chemical lobotomy of a Blue Pill.
You obviously realise something doesn't quite add up with respect to copyright, but you still have a lot of indoctrination to divest yourself of.
Fundamentally you have a choice of believing that people should not enjoy their cultural liberty, in order that publishing corporations can enjoy monopolies (and pay artists a pittance), or that both artists and their audiences should enjoy their cultural liberty to share and build upon each others' work, mankind's cultural commonwealth - as we have done from 500,000BC to 1709AD.
If slavery was abolished, cotton pickers would be left in the gutter to starve. We need some form of slavery to avoid a human tragedy on a colossal scale.
Copyright is just an anachronistic 18th century privilege, no longer effective in protecting a state granted reproduction monopoly. It's now just a sniper rifle used by psychopathic corporations to futilely persuade the plebs not to join the swelling ranks of their pirate fellows.
You're on the edge, the fence, caught in a quandary between accepting your programming that copyright is good, and your intellect telling you it's a crock'o'shite. If you stay in this situation too long you learn to live with this doublethink and become a ghost trapped in the netherworld "I cannot accept that, contrary to my upbringing and the opinions of those I respect, copyright is not good and necessary to society, but I find this law bizarrely unviable"
The red/blue pill decision is your decision as to whether you will believe:
1) Copyright's original purpose was to benefit society. Any issues it has that may be argued depart from this purpose can be resolved, such that it continues to benefit society.
2) Copyright's original purpose was to benefit the state, through effective control of a beholden press. Now that the people are the press, it is no longer providing effective control, however much it is enhanced or draconian its enforcement. Totalitarianism is the state's recourse.
The re is no principle apart from the church and state wanting to control the dissemination of information, and those who enjoy the consequent licenses or monopolies wanting to keep them.
It may be difficult to imagine that copyright wasn't created by a bunch of kind-hearted philanthropists for the good of mankind, but that's the red/blue pill decision you're going to have to take one day.
If you have the impertinence to allege copyright infringement against someone significantly more powerful than yourself (especially an immortal corporation), they will simply use copyright back against you - as you have found out.
Copyright is not about justice, or determining the truth of of a work's provenance. A court is only involved in arbitration when both party's litigation budgets are within reach of each other.
Consider yourself lucky you aren't facing extradition, decades in jail, or mere bankruptcy. CPBR evidently admire your spunk enough to let you live to fight another day.
The remaining question for you is whether, like Boromir, you repent, or, like Sméagol, you sell your soul in futile pursuit of a power never intended for mere mortals.
You will find even copyright apologists such as Lawrence Lessig saying that while sharing mankind's knowledge is a good thing, it is still up to each and every copyright holder to make this decision (not for the likes of Aaron Swartz, or any other pirate, however well meaning).
This is why he created Creative Commons - to make it easier for people to share their work (to the extent they were comfortable with), but without making any value judgement about copyright itself - save that it is the law, to be obeyed, with infringers liable for damages.
Ask Mike Masnick. I think you'll find even he believes copyright is essential.
Only fringe idiots and psychopaths promulgate crazy ideas that copyright might not be as sacrosanct as any other human right.
As Queen Anne observed in 1709, a nation cannot be encouraged to learn unless publishers have the privilege of prohibiting the unauthorised manufacture and distribution of copies.
For science and the useful arts to progress, the American people need copyright, they too need the power to prohibit the sharing of mankind's knowledge, for without it there is no profit in its production.
It is morally wrong to impede the people's learning and to impede the progress of science, therefore it is a crime against humanity to conspire or prepare in acts that show intent to disseminate scientific papers contrary to copyright.
It is legally, if not morally wrong to share mankind's knowledge - to obtain (with the intent to distribute) published scientific papers without authorisation from the respective copyright holder(s) is a very serious crime, and should be dealt with in the harshest possible way.
And I blogged a response to Bambauer (he hasn't 'yet' published my comment on his article):
Derek Bambauer suggests the cartel’s attempt to frame copyright as ‘a natural right to be secured’ is greenwashing. I suggest it is because they’ve recognised I have a point – the US Constitution did not empower the granting of a privilege. See my argument with Karl
The US Constitution empowers Congress to SECURE the author’s (“solemnly adjudged to be a common law”) right to exclude others from their writings for limited times.
In 1787, in the New World and Old, most of those in the publishing industry were kidding themselves that a reproduction monopoly was a natural right and that the Statute of Anne (and various states’ legislative imitations) was a paltry legal recognition thereof. This is why James Madison (despite Jefferson’s suggestion to explicitly empower the granting of monopolies) knew he only needed to empower Congress to secure a right, in order to grant the monopoly of copyright.
By legislating the first US copyright act (Statute of Anne with minor edits) in 1790, most of those interested would accept this as the securing of a natural right (despite the fact that Madison & Jefferson knew damn well that copyright was the granting of a monopoly, not the securing of a right) – “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”.
Madison (who wanted copyright enacted) knew that a clause empowering Congress to grant monopolies would not have been ratified, hence his insertion of a clause that ‘secured a right’ – a pre-existing right (“endowed by their Creator with certain unalienable Rights”).
The point is, although the clause was APPARENTLY sufficient to enable Madison/Congress to grant copyright (by way of securing a common law right as others would assume) it was not ACTUALLY sufficient. Copyright is the grant of a monopoly and not at all law that secures a common law right.
So, Congress did not have power to grant copyright. It only had power to secure an author’s natural right to exclude others from their writings, i.e. our physical power to exclude burglars from copying our writings, such as our memoirs in our desk drawers (a natural right) – not to exclude those who purchase copies of those memoirs from us, from making and distributing their own copies (a privilege).
So, the cartel, conceding that the US Constitution empowered only the securing of a natural right, must now pretend that a reproduction monopoly is a natural right. And like James Madison, they will lead their audience to believe this without actually asserting it.
After all, it's merely an unfulfilled contract, and as you should know, contracts are often copied in triplicate.
The wrong comes when people fraudulently attempt to fulfil the contract multiple times - or pass off a copy of a contract as a separate contract.
This is why each banknote has a serial number. Each serial number denotes a distinct contract.
Currency is based upon the distribution of banknotes where only zero or one copy exists of any particular banknote at any one time.
Of course, because it is particularly tempting to pass off copies of banknotes as if they were not copies (and everyone assumes only one copy exists) governments typically make the manufacture of copies illegal, even though the fraud only occurs when an attempt is made to pass off a copy as genuine (counterfeit).
Thus copyright is nothing to do with fraud, which remains wrong even after copyright has been abolished.
You cannot fix copyright - to do so would require not only brainwashing the people to pretend they had no natural liberty to share & build upon their own culture (largely successful), but also to actually prevent people accidentally/instinctively enjoying their liberty to share & build upon their own culture (not very successful at all).
If you cannot fix copyright, because you cannot fix people to obey it (as well as agree that it's a jolly good 18th century privilege), then you have to abolish it - you have to fix the law by repealing the privilege that annuls the people's right to copy.
But, while we enjoy the hegemony of the church of the copyright cartel, and the brainwashed masses' support for the privilege that culturally represses them, they will not abolish their 'blasphemy laws'.
It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few... They... consequently are instruments of injustice ...
The purpose of copyright (1709 Statute of Anne - copied by Madison 1790) is to enable the state to obtain effective control over a press consequently beholden by the grant of lucrative reproduction monopolies.
Laws that secure the people's natural rights (against murder, burglary, fraud, kidnapping, etc.) need no pretext. Grants of monopoly, being abridgements of liberty, need a bit of finessing, e.g. "You can't retell folktales, sing folksongs, or even copy the books of folklore any more, because it'll be better for society this way, trust us".
Just as correlation does not imply causation, so pretext does not imply purpose or consequence. If the purpose is profit and control, and the consequence is low diversity populist pulp and kids in prison, only the devoutly gullible will insist that the people's learning has nevertheless been encouraged.
Trouble is, people cannot afford to confront the terrifying truth that copyright never had a philanthropic purpose.
Copright MUST have been legislated for mankind's benefit - ipso facto, the copyright reformist's mission is to try and find a mythical holy grail form of copyright that IS beneficial to mankind.
Ridiculous? Don't worry, the cartel are already at work on this lovely propaganda: "Copyright is the new civil rights movement".
Yup, amazing ain't it? Do a Google search. So this is why Martin Luther King's estate are suing anyone who copies or distributes the 'I have a dream' speech without a license - because it's a civil rights issue!
Whereas slavery takes away all the liberties of a few, copyright takes away a few liberties from us all.