Can We Kill The Myth That The Constitution Guarantees Copyrights And Patents?
from the it-doesn't dept
We’ve seen it all too frequently: copyright and patent system supporters insisting that these forms of government-granted monopoly privileges are guaranteed by the Constitution, due to Article I, Section 8, Clause 8. People like to claim that, for example, the First Amendment can’t conflict with copyright law since “both are rights provided by the Constitution.” Of course, that’s not even close to true. The Constitution does not grant rights. It just defines what the government can and cannot do. The “free speech” right we often discuss is not granted by the Constitution, but rather preserved by the Constitution… As for the copyright and patent clause? That’s very often misinterpreted. All that clause does is give permission to Congress to create such laws — but solely for the purpose of “promot[ing] the progress of science and the useful arts.”
The latest person to make such a bizarrely incorrect claim is Colin Hanna, who purports to run an organization “advocating for a constitutional approach to public policy making.” Kind of surprising that he’d say that when it’s not clear he’s all that familiar with the Constitution, as he argues at length about the supposed Constitutional “rights” of “authors, scientists and inventors.”
Protecting intellectual property is in fact a property rights issue. Protecting free speech is not the same as stopping the outright theft of another’s property. It’s the difference between liberty and lawlessness. We must be in favor of the former and opposed to the latter.
On this Constitution Day, we should begin to rethink the protection of intellectual property rights on the Internet not as a limitation of Internet freedom, but rather as a logical contemporary interpretation extension of the basic Constitutional rights of authors, scientists and inventors that our Framers set forth so plainly two and a quarter centuries ago.
The title of the article is “our forgotten constitutional right: intellectual property.” But, again, that’s ridiculous and wrong and not what the Constitution says at all. Section 8 enumerates the powers of Congress, not the public. To interpret that to mean there’s a Constitutional Right to patents and copyrights is not just ridiculous, but would open up all sorts of bizarre “rights” on other issues in Section 8. Let’s go through a few examples, if Hanna’s interpretation is correct.
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
Under “Hanna-logic,” where he believes the powers given to Congress to do something mean that Americans have a “right” to the output, it would appear that the Constitution clearly grants the public the right to have all the money they want. Clearly, this line is the “right to money” line. Where’s mine?
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
I’m declaring war! Anyone want a letter of marque? Let me know! It’s my right!
To provide and maintain a Navy;
I do live near the water… and apparently, under Hanna-logic, I have a “right” to make use of the Navy… Hmm…
Point made? Section 8 does not grant any rights to the public at all. It simply gives Congress the power to enact laws — in the case of the copyright clause, solely for the purpose of promoting the progress of science and the useful arts. That has no bearing on whether or not such laws or their output are a “right” in any sense of the word.
Filed Under: constitution, copyright, patents
Comments on “Can We Kill The Myth That The Constitution Guarantees Copyrights And Patents?”
I always think of the US Constitution as one of the most advanced and well crafted in the world (if not THE most) albeit not perfect (what really is?).
And while it’s not my country (and we do have our own problems here) it saddens me to see successive US Administrations simply twisting interpretations and/or flat out ignoring what their Constitution says. If the US Govt really abode by its constitution we would not be discussing copyright excesses, patent absurdities, mass illegal surveillance and other preposterous issues that are very real and present nowadays.
Sony Bono act wouldn’t have passed. The DMCA would have broader and clearer fair use rights and public domain definitions. We wouldn’t be seeing Samsung and Apple fighting over bouncy effects or round edges. We wouldn’t need to fight absurd bills (SOPA/PIPA) or ludicrous and often secret international treaties (TPP/ACTA). All of that would be killed upon birth and have nill chance of getting through.
It is sad to see the great eagle flying so low. But then again, “Empires” rise and fall, we’ve seen that before in History. Maybe it’s just the natural and needed course and it will breath new life into the world. Or are we heading yet again to a dark age of knowledge, culture and society as we did in the Middle Ages?
“Can We Kill The Myth That The Constitution Guarantees Copyrights And Patents?”
I don’t know. Does it bleed?
Re: Re:
Yes. And when it comes time for its defeat, the entire area goes up in nuclear fire while a few survivors “Get to da choppah!”
Problem Solved
I want a Letter of Marque to sieze all goods emminating from Hollywood.
Re: Problem Solved
That implies that there’s anything good that comes from Hollywood.
Re: Re: Problem Solved
The Guild and some other webseries are produced in Hollywood. If there is anything good will be up to the president since he is the one with the right to condemn or sell the captured enemy vessel and its cargo. Your letter will not guarantee you any part of the loot!
Re: Re: Problem Solved
Does it matter? If everything is static, then death has taken place, even if merely temporary.
Hrm… so.. if it is property, the right to use such being granted by the Constitution, then that means the government can seize it via Eminent Domain.
“or seize a citizen’s rights in property with due monetary compensation, but without the owner’s consent. The property is taken either for government use or by delegation to third parties who will devote it to public or civic use or, in some cases, economic development.”
Seize it, release it to the Library of Congress (third part) for dispersal to the Public Domain.
Re: Re:
with due monetary compensation
Problem is, there isn’t enough money on the planet.
Re: Re:
It also means the government can tax it. Goodbye deficit!
Average_Joe, before you turn up frothing at the mouth again…Section 8 Clause 8 does NOT mention copyright. It says Congress has the power to enact laws to better ensure the creation of artistic and scientific works, but does not DEFINE what those laws are or what form they should take. If copyright was intended to be in the constitution, it would be mentioned there by name and spelled out as to its effects and limits.
Re: Re:
(parasitizing on your post)
1. while the constitution is a fine document, not only does it have its flaws (anyone think they are 3/5ths of a human being ?), and not only didn’t have to deal with many issues which arise because of new technologies, but i also do not worship at the altar of the almighty, ‘infallible’ forefathers…
2. having said that, they did a pretty good first draft, as well as allowing for changes as times changed…
3. however, as it happens with many/most laws: it isn’t the words on the paper, it is the people charged with keeping us within those legal principles who determine what is/isn’t adhered to…
(as andrew young once famously observed: the law is what 100 businessmen say it is.
*that* is the on-the-ground political reality…)
4. it ain’t dead forefathers who concern me here, it is their ‘descendants’ who have weakened, watered-down, avoided, and -oftentimes- simply ignored any/all constitutional proscriptions…
for example, our right to not have unreasonable searches and seizures should NOT simply apply to our persons, houses and luggage, etc, as originally semi-defined; but EVERYTHING that has arisen in the meantime which *NOW* comprises ‘our papers’ etc…
that means WHATEVER the container is -a purse, a phone, a computer, an MP3 player, a storage locker, a cloud storage service, ANYTHING which houses OUR ‘stuff’ should be subject ot that same protection… whatever the form: actual paper, bits, or whatever…
instead, that ‘right’ has been chipped away and wished away based on nothing other than people in power being able to get away with it…
in other words, instead of strengthening our rights and updating them for new technologies, the new technologies have served as an excuse to erode our rights…
5. and, as a final bonus, just where is below-average joe on how we have simply ignored those bits of the constitution which are too onerous for ‘our’ (sic) gummint servants to follow…
i -for one- am now thinking the idea of ‘no standing armies’ makes a hell of a lot of sense… (not to mention monies)
where stand you on *that* little tidbit of ‘strict constitutionalism’ ? ? ?
yeah, thought so…
authoritarians are so predictable…
art guerrilla
aka ann archy
eof
it wont happen until the old idiots that keep propping up dying industries that refuse to adapt and innovate are actually removed from the positions that allow this ridiculous practice to keep happening.
Re: Re:
The problem with this logic is that it’s the “dying industries” that have the money and need to spend money lobbying to get the attention of “old idiots”. Inventors and innovators tend to be new and not established so they tend to have no pull in regards to lawmaking.
Re: Re:
Just imagine what the disruptive innovations will be when streaming and file-sharing have become the entrenched old guard.
All that clause does is give permission to Congress to create such laws — but solely for the purpose of “promot[ing] the progress of science and the useful arts.”
Really?
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
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;”
I didn’t see the word solely in my copy of the Constitution.
Re: Re:
“I didn’t see the word solely in my copy of the Constitution.”
Neither did I. Mike must be slipping again. Or maybe this has something to do with my constitution being written in Portuguese…nah, Pirate Mike is surely to blame.
Re: Re: Re:
How’s the anti-Mike fan club today ? Planning any trip to Lisbon ? I hear they have wonderful music over there…
Re: Re: Re: Re:
Yes, we do have lovely music, not only in Lisbon, but pretty much everywhere else here…but note that speaking Portuguese doesn’t immediately imply that I am from Portugal (basically, you got lucky 😉 ).
Also, my previous comment was meant to be sarcastic. I don’t hate Mike…or the trolls for that matter. I’m just here to crack jokes (and fail at it, apparently).
Re: Re: Re:2 Re:
Here’s a handy advice: don’t forget to add a “/s” tag at the end, or anything relating to “/sarcasm”. That way, you can get away with it without others jumping on you for the false thoughts.
Re: Re:
And he didn’t put the quote marks around “solely” in his original text so I guess you guys agree.
Re: Re:
Was there a word that said that you were allowed to do things contrary to the promotion of progress of science and useful arts?
Re: Re:
Me neither – but I also don’t see any wording that says it has any other purpose, so I’m not sure what your point is.
To paraphrase Dexter Cornell, “just because you don’t see it doesn’t mean it’s not there, idiot.”
Re: Re: Re:
“When the wise points to the moon, the fool looks at his finger”
Re: Re: Re: Re:
“Man who goes to bed with itchy butt wakes up with stinky finger”
Re: Re: Re:
“Me neither – but I also don’t see any wording that says it has any other purpose, so I’m not sure what your point is.“
You mean like preserving the business model of a legacy industry ?
Re: Re: Re: Re:
Well, it can be preserved under Public Domain as an antiquity.
I smeel an iron somewhere….
Re: Re:
Ha!
I thought the petty, juvenile sniping at Mike hit a low point, but apparently I was wrong.
Even if that word was there or not, it makes no difference to the thrust of his argument: the purpose of this power granted to congress is entirely practical in nature and the intent is perfectly clear.
This is desperation.
Re: Re: Re:
Must defend all pillars of “the law is the law” defense.
Re: Re:
I didn’t see the word solely in my copy of the Constitution.
It doesn’t need to be there, since there is only one reason given for the “exclusive right” and that is: “To promote the Progress of Science and useful Arts”
Using solely to describe a list of one is perfectly accurate.
Re: Re:
I didn’t see the word solely in my copy of the Constitution.
I don’t think the debate is over that so much. I think the issue that gets ignored by the “break the internet!” crowd is the fact that Congress gets to decide what promotes the progress. Moreover, the Constitution does not say that that progress has to be maximized. It just merely must be promoted, whatever Congress decides that means. And the Supreme Court has made clear that substantive copyright laws are only going to be reviewed under the rational basis test (assuming fair use and the idea/expression dichotomy are left intact). So that means whatever Congress decides for all practical purposes will ipso facto be promoting the progress sufficiently for constitutional purposes. Just because some zealots would prefer that it were promoted differently or better, it doesn’t mean that the current system is unconstitutional.
Eldred v. Ashcroft, 537 U.S. 186, 212-13 (2003).
So I think it’s a bit silly to argue about whether promoting the progress is in fact the purpose of copyright–it is. I think the debate is really over what that means and whether it’s really a substantive limit on Congress’s power to enact copyright laws–in practice, it’s not. One last point is that I think it’s important to understand too that lots of things can promote the progress. For example, recognizing an author’s natural right to the fruits of his intellectual labor itself promotes the progress. Of course, the anti-copyright crusaders love to leave out the means part of the equation. How does the Constitution envision that the progress should be promoted? By giving authors the right to exclude. Boom.
Re: Re: Re:
as much as I dislike agreeing with AJ, he raises a valid point here.
Though i will say that unless current copyright provides a net positive to the public, it would technically be unconstitutional.
Re: Re: Re: Re:
Though i will say that unless current copyright provides a net positive to the public, it would technically be unconstitutional.
That sounds nice and all, but then how do you decide how to measure it? What factors are important? What factors aren’t? The “promote the progress” standard changes depending on who you ask what it means. It’s not some empirical result that can be measured. That’s mostly why the Court has signaled that it will just defer to Congress’s view on the matter. Congress decides what promotes the progress. The Court has never, and I doubt will ever, tell Congress that their decision vis-a-vis a copyright law doesn’t promote the progress. So when anti-copyright zealots harp on the purpose of copyright being to promote the progress, they’re leaving out the inconvenient truth that that limitation has little to no teeth.
Re: Re: Re:2 Re:
It’s still not a Constitutional right. It’s a limited monpoly granted by Congress based on a power that the Constitution gives them (to the Congress).
This is pretty much clear. Copyright is NOT a Constitutional right.
And as much as you wish it was true, it is not contributing to any progress.
Re: Re: Re:3 Re:
I never said it was a constitutional right. It’s a statutory right. Says so right in Title 17 of the U.S. Code. So I don’t get your point.
Nor do I understand your claim that copyright is not “contributing to any progress.” That claim is so ridiculous and so extreme, that I don’t even know where to begin. Is copyright providing the economic incentive for authors to create new works? Yep. That means it’s working.
Re: Re: Re:4 Re:
In theory, at lkeast, copyright is “promoting the progress”. However, the fact is that the laws supposedly designed for that function are not fit for purpose. I see no progress in taking down videos falsely (whther intentional or otherwise) of content that is not theirs under current laws.
The laws in this area need to be reformed to a more….”balanced” state, but balanced as used there isn’t the correct term. I guess the closest is “progressive”, but that’s not fully accurate either.
And you do raise a valid point.
Re: Re: Re:2 By Precedent (to Average Joe, #51)
Average Joe cannot be expected to know this, being merely average, but the phrase, “limited term,” is what lawyers call a “term of art,” that is, a conventional shorthand reference to a technical meaning. In this case, “limited term” refers to the 1709 Statute of Queen Anne, and the subsequent legal cases arguing over this statute (*). This would have been immediately familiar to someone in the 1780’s who had a legal education, say someone who, in his youth had gone to England to attend law school at the Inns of Court in London. That is why the American Copyright Act of 1790 looks substantially like a paraphrase of the Statute of Queen Anne. The authors of the 1790 Copyright Act dug into their old textbooks and lecture notes, and followed prior convention unless there was good reason to depart from it.
The Supreme Court’s decision in Eldred was simply moral cowardice, like the Taney court’s decision in Dred Scott, back in 1857, a reluctance to take the responsibility of disturbing the prevailing order, even when the prevailing order was coming apart. Of course, Chief Justice Roger Taney’s moral cowardice didn’t really get him out of any difficulties in the long run, and Justice Ruth Bader Ginsburg will probably reach the same conclusion.
(*) Ref: Sir Frank Mackinnon, “Notes on the History of English Copyright,” Appendix II in Sir Paul Harvey, The Oxford Companion to English Literature, 3rd. ed., 1946
http://www.techdirt.com/articles/20120130/00352917585/sopapipa-protests-were-not-pro-piracy-they-were-anti-crony-capitalism.shtml#c858
Re: Re: Re:3 By Precedent (to Average Joe, #51)
So you think life + 70 years is an unlimited term? I don’t see it.
Re: Re: Re:4 By Precedent (to Average Joe, #51)
“So you think life + 70 years is an unlimited term? I don’t see it.”
Nor will you, since it’s longer than your lifespan.
Re: Re: Re:5 By Precedent (to Average Joe, #51)
Ha!
Re: Re: Re:2 Re:
That sounds nice and all, but then how do you decide how to measure it? What factors are important? What factors aren’t? The “promote the progress” standard changes depending on who you ask what it means. It’s not some empirical result that can be measured.
And yet the Court constantly grapples with similarly arcane language elsewhere in the Constitution. Yet here, suddenly, it can’t make a decision on what the phrase means? Please.
Re: Re: Re:3 Re:
To be fair, there is a point of discussion here, even if I disagree with AJ’s conclusions. The question isn’t, in my mind, that of the Constitution’s wording: rather, it is the implementation that I disagree vehemently with.
FWIW, I’d like copyrights for digital-only content (such as e-books, FLACs) to be minimal (max 5 years). However, I’m pretty sure that I’m a radical in this area.
Re: Re: Re:4 Re:
No, what’s radical is me trying to put a one-year copyright on everything I make and then having it release into the public domain.
Re: Re: Re:
“For example, recognizing an author’s natural right to the fruits of his intellectual labor itself promotes the progress. “
Not necessarily.
Ants live and die for their colony. The interests of the individual are meaningless – the only thing that matters is the well-being and perpetuation of the colony.
Some ants will gladly sacrifice themselves if that means that the colony could continue to survive. There is no property – everything belongs to the colony.
I don’t think anyone here would argue that ants aren’t successful. If we wanted to emulate such a society, your suggestion would actually be hindering progress. It would not only hinder it, but it would destroy the very thing that makes it successful.
(this is just to show that we can’t go around thinking in absolutes, or else we might shoot ourselves in the foot)
Re: Re: Re:
Well said. (Minus the condecending tone you can’t seem to let go of.) The crux of the question is whether limiting, or eliminating, copyright protections, would cause more creation or not.
Since creativity seems flourish in sectors without copyright protections, e.g., fashion and culinary sectors, there is a strong possibility that ratcheting up the length and bredth of copyright protections is actually decreasing the amount of creative works.
Would you, AJ, be for eliminating copyright protections if it were proven that doing so would increase the creation of creative works? (Understanding that such a thing would be difficult to prove, of course.)
Re: Re: Re:
Moreover, the Constitution does not say that that progress has to be maximized. It just merely must be promoted,
Except that logically they come to the same thing.
Re: Re: Re: Re:
Except that logically they come to the same thing.
They don’t. The Court is saying that Congress can decide what it means to promote the progress and how to strike the balance that it wants, i.e., how much it wants to promote the progress. That’s not the same thing as maximizing the progress, whatever that even means.
Re: Re: Re:
Funny… I recall over the weekend average_joe promising that he wouldn’t be posting here for the rest of the year. Apparently, he’s going to ignore that just like he ignored his promises to respond to my questions in the past.
That said…
I don’t think the debate is over that so much. I think the issue that gets ignored by the “break the internet!” crowd is the fact that Congress gets to decide what promotes the progress. Moreover, the Constitution does not say that that progress has to be maximized. It just merely must be promoted, whatever Congress decides that means. And the Supreme Court has made clear that substantive copyright laws are only going to be reviewed under the rational basis test (assuming fair use and the idea/expression dichotomy are left intact). So that means whatever Congress decides for all practical purposes will ipso facto be promoting the progress sufficiently for constitutional purposes. Just because some zealots would prefer that it were promoted differently or better, it doesn’t mean that the current system is unconstitutional.
I don’t see how there’s actually any debate about that at all. I think everyone agrees that’s how the Supreme Court has ruled. I think that many of us think that the SC’s rationale for that argument is weak — and we speak out because we think that the SC made a mistake and the way to correct that is to make more people aware of the faulty arguments made by the SC in Eldred and its progeny.
One last point is that I think it’s important to understand too that lots of things can promote the progress. For example, recognizing an author’s natural right to the fruits of his intellectual labor itself promotes the progress. Of course, the anti-copyright crusaders love to leave out the means part of the equation.
As is all too typical, you are lying. We frequently discuss the “means” part. What we have a problem with is when you lie and suggest that the means are the key, rather than the result. Also… arguing “natural right” is bullshit, as you well know. The US does not recognize a “natural right” in “intellectual labor,” but merely an artificial, government created right.
But, of course, you won’t admit that.
Now, what happened to you living up to your promise? Of course it won’t happen, because you can’t NOT lie about us.
Re: Re: Re: Re:
Ahh, so now SCOTUS is wrong, because they don’t agree with you?
“Now, what happened to you living up to your promise? Of course it won’t happen, because you can’t NOT lie about us.”
I would say Mike that you are feeling the heat from AJ. He brings good points, and you are really having to tapdance to call him out. Your tone in answering his post makes me think you are angry and frustrated because he has seen some of the faults in your general arguments.
The “promotes the progress” issue is key here: The constitution doesn’t say that copyright or patents would have to satisfy your personal progress, and certainly not the short term progress of anything. Remember that, if at the end of it all, you are even marginally ahead, you have still made progress. If a single additional song is written, or a single extra new drug created, or a single new device made, then you have progress.
You may not LIKE the progress, you may feel there is more progress in other routes. But the reality is that congress are the only ones who get to decide if progress is made, and so far they are satisfied with the trade offs, as is just about every other government on the planet.
I would say you need to give AJ some space – what he is saying is true. You might not like it, but he isn’t lying.
Re: Re: Re:2 Re:
Thanks for the support. Just to clarify, I did promise Mike that I’d leave him alone. I said, “I’ll leave you alone through the end of the year.” Source: http://www.techdirt.com/articles/20120928/08560420538/dhs-boss-charge-cybersecurity-doesnt-use-email-any-online-services.shtml#c695
I didn’t specify what that meant, but I thought is was clear that I’d stop with the “Hey Mike, why don’t you address this?” type posts. In other words, I wouldn’t direct posts to him specifically.
I’m happy to keep up my end of the bargain, but if he’s going to bait me with comments directed specifically at me, as he’s done in these very comments more than once, then I’m going to take that as an invitation to not leave him alone and I’m going to assume that he doesn’t want me to keep my end of the bargain.
Why else would he direct a comment at me unless he wanted me to respond?
Anyway, I’ll let it slide here since I believe there is some good faith misunderstanding. Suffice it to say that I have responses to all of his comments as the constitutionality of copyright is my most favorite topic in the whole world, and I’ve thought about it more than probably anything else.
That said, you’re exactly right to point out that the Constitution doesn’t say we all get to decide for ourselves what promotes the progress. Congress gets to decide. Sour as some may be about the choices made, the issue does not then become constitutional.
Re: Re: Re:3 Re:
“I didn’t specify what that meant, but I thought is was clear that I’d stop with the “Hey Mike, why don’t you address this?” type posts. In other words, I wouldn’t direct posts to him specifically.”
Yeah, leave it to a lawyer wannabe to say something and leave himself enough wiggle room to do as he pleases anyway. “I didn’t specify.” I so knew the minute I saw you say you’d leave him alone that you’d do anything but and I even thought to myself, “Oh hey, he didn’t specifically say what that would entail.”
Re: Re: Re:4 Re:
leave it to a lawyer wannabe
That’s “lawyer gonnabe.” Thanks.
Re: Re: Re:5 Re:
That’s all the world needs is another douche bag lawyer.
Re: Re: Re:2 Re:
Having read some of the previous posts by sir Average_joe, you clearly see the extend he is going to critizise the articles in this blog. Not only that: He has had a history of using ad hominem against “pirate Mike”. I, as a reader of the blog, am not interested in how Mike has treated him personally.
In this case Mike did seem less objective, but in general Average_joe is the one carrying the torch of faith and the anger in his heart.
Re: Re: Re:2 Re:
I would agree with you to some degree. Typically, given two different approaches, if “A” produces one new song and “B” produces three new songs then both approaches should be thought to “promoting” song production. However, there is an exception when “B” consists wholly of “not doing A” — in other words, not doing A results in more songs being produced.
Taking the current copyright regime as a whole, I believe we’ve reached that tipping point: the point where having no copyrights would result in greater promotion of creative works than what we have.
Re: Re: Re:
I don’t think this gets ignored at all. In fact, it’s central. Congress (theoretically) represents us, and their decisions (theoretically) reflect what the people want. Saying they get to decide is (theoretically) the same as saying the we get to decide.
It’s entirely proper for us to pressure Congress act in the way that we want in this regard.
Re: Re:
I don’t see any other purposes enumerated in my copy of the Constitution. If there were other purposes, they weren’t written into the Constitution, therefore, as an accurate description, the Constitution only provides (solely) that purpose.
Re: Re:
“I didn’t see the word solely in my copy of the Constitution.”
The solely thing is a way that Mike a some other people attempt to create a strawman to measure copyright’s effectiveness. It is an attempt to set up a rather ridiculous measuring system, one that is impossible to define, and then claim that little meets it.
It’s intellectual sleight of hand.
Re: Re:
One must read the entire sentence (Article 1, Section 8 is all one long sentence) in order to see whence the “solely” stems.
… To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
If it is not necessary “to secure for limited times…” as a method of “promoting the Progress…” then Congress has no authority to do so. No other purpose is given as justification for Congress having that authority.
Re: Re:
However, it is the sole reason listed. The Constitution explicitly lists the “rights” that the Federal government has. If it isn’t listed, the feds don’t have that right. That only one reason is listed here is significant regardless of whether or not they used the word “solely”.
Re: Re:
I didn’t see the word solely in my copy of the Constitution.
The document is clearly enumerating what Congress can do. Here it mentions a single reason to establish such monopolies, thus, any other reason is disallowed. Not hard to understand.
Re: Re:
I didn’t see the word solely in my copy of the Constitution.
Nor did Mike, since the quote was “promot[ing] the progress of science and the useful arts.”
The rest was his own words.
You failed Reading Comprehension in grade school, didn’t you, boy?
Re: Re:
One must remember that the Constitution, and especially I.8.8. was based on English Law which, by the mid 1700’s, had fairly comprehensive copyright and patent law in place. I suspect the intention was to enable Congress to build a similar system. It has since become bastardized on both fronts, here and Europe, by the commercial interests now paying for our lawmakers. The best legislatures money can buy. I’m gonna hate being around when it all collapses, which it will. Maybe I’ll get lucky and die first, but probably not.
Re: Re:
Take apart the second phrase of your quote: the goal is “To promote the Progress of Science and useful Arts”, and the method is “by securing for limited Times to Authors and Inventors the exclusive Right…”
It doesn’t have to explicitly say “solely” for Mike to be justified that the “exclusive Rights” clause has the purpose of promoting science and art.
My other pet peeve is that “limited Times” as applied to copyright has been twisted in the last century. Sure, it’s limited – long after the author is dead and gone. I’m not so sure that the Constitution’s authors ever dreamed it would become “by securing for the rest of their Lives and the Lives of their Children …”, or more importantly, that such long terms actually serve any public interest.
"Can We Kill The Myth That The Constitution Guarantees Copyrights And Patents?"
The recording industry states the economy will be fatally wounded without draconian copyright laws and enforcement.
Are you suggesting we kill off this economic savior?
What about the many thousands of people they employ?
Did you even stop to think about the popcorn farmers?
/sarcasm
Re: "Can We Kill The Myth That The Constitution Guarantees Copyrights And Patents?"
popcorn farmers?
You’d think they’d be fine selling to the hordes of internet forum goers commenting on copyright issues alone.
/popcorn
re: “The Constitution does not grant rights.”
Is the 2nd amendment not an explicit example or a “right”?
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Of course, that particular “right” has been continuously whittled down over the last eight decades, despite being about as explicit as it could be.
But I would have to agree that “the Constitution does not grant rights” – since in reality it’s just a piece of paper that can be “re-interpreted” any way a judge wants, and therefore meaningless in the end.
Re: Re:
The Constitution does not grant that right.
It mentions it, and provides that the government may not annul it, but it does not create or grant that right.
The first amendment, too, follows this model: “Congress shall make no law…”
Re: Re:
The 2nd Amendment does not grant you the right to bear arms.
God or Allah or FSM gave you that right upon your birth on this mortal coil.
What the 2nd Amendment says is that the government cannot take that away from you. That’s what all of the Bills of Right are. Things that you have a natural right to that the government is specifically enjoined from removing.
Re: Re: Re:
From the Constitution’s point of view, none of those entities “gave” you that right. Your rights are inherent, based upon being a human being. No power “grants” them.
Re: Re: Re: Re:
Are you ignorant of FSM!?
Re: Re:
Of course, that particular “right” has been continuously whittled down over the last eight decades, despite being about as explicit as it could be.
Nothing here specifies what kind of arms the people have the right to bear.
Either it is unconstitutional to put any restriction at all on the arms that may be born (privately held nuclear weapons anyone?) or the state can restrict this right as far as it likes provided some arms are legal.
Frankly the “right to bear arms” is a pretty stupid thing to put in the constitution – it is either meaningless or ridiculous.
Re: Re: Re:
The issue is that what language means now, and what it means then, is completely different.
Re: Re: Re:
but with out that specific portion, it would be fine for the Government to just say… No arms period… right now its taken them about 200-150 years to figure out ways around it and enough case law to say they are doing the “right thing”
Re: Re:
please bear in mind that the sainted forefathers had quite a tussle amongst themselves over ‘rights’, simplistically speaking:
one faction did NOT want ANY rights specifically enumerated, since they felt (probably rightfully so, as it turns out), that future authoritarian types (like below-average joe), would insist that the literal words of the constitution and bill of rights constituted ALL of our ‘rights’…
the other faction ALSO thought we had inalienable rights granted by our ‘creator’ (may his noodly appendages have a tomato-based meat sauce); BUT that we DID have to explicitly spell out *some* rights, otherwise they would be traduced…
BOTH sides wanted to ensure that the enumerated rights were NOT our complete and only set of rights, MERELY a small subset they wanted to ensure were codifed in law…
art guerrilla
aka ann archy
eof
Okay, disregarding the fact it came from FoxNews (WTF WARNING AT SEVERE), there’s quite a few things going on here, and both sides are at fault for not recognizing the issue.
The linked article shows more needs to be done because of the Constitution, not that anyone has a right to it. The 1976 law is what gave everyone a blank check on copyright, and that was established by the Congress.
I can’t say I agree we read the article in the same manner, having read TD’s response to it. Perhaps the paragraph of focus was taken away from the premise, but it seems to me poor execution of the point is at fault for this.
Despite all this, I want to ensure an important point to Mr. Colin Hanna, should he read this site.
You are very mistaken to believe our forefathers felt copyright was important. In fact, The United States didn’t ratify the document for well over 13 years because of the issues of copyright.
Failure to understand this issue is where blatant ignorance, while calling for the very issues called forth our forefathers saw forthcoming, is inexcusable.
Copyright had nearly prevented the Constitution from being ratified because the majority of those who drafted it were pressured by states to include it, and those states were pressured by… wait for it… publishers!, who were critical in establishing early communication in the soon-to-be United States.
Copyright has been an issue in every country of the world since.
Learn your history, Mr. Hanna.
It's just a piece of paper!!!
“Stop throwing the Constitution in my face. It’s just a goddamned piece of paper!”
– George W. Bush
Great article
This is a great article, because it’s important to highlight that copyright is intended to be practical, and the constitution doesn’t give the “right” to copyright, but keeps it for itself.
Did anybody read the actual Fox News article this came from? What I love best is how it was obvious the article was so laser-pinpoint targeted at selling their product (an extreme, controlling interpretation of copyright) the Fox News audience, with language like “the concerns of civil libertarians were unfounded” and the evocation of small government, the constitution (a document they barely comprehend, as shown by confusing articles of this type) and powdered wig dead white guy fetishism the Fox audience eats like red meat thrown to guard dogs.
Say what you like about this guy, but he knows his audience!
The Constitution is a practical document, not a magical incantation that keeps the Pirate Bay away.
Seriously, the point that copyright is not a right granted by the constitution has to be hammered over and over and over and over, because it is a great public relations weapon in the arsenal of maximalist trolls that has to be nipped in the bud by a correct reading of the actual document. Otherwise reform isn’t possible.
In fairness to Hanna
In fairness to the author of the Fox News article, he doesn’t seem to believe he’s talking about copyright or the patent system as a whole. When he refers to “outright theft,” he seems to means that literally – he is ONLY talking about counterfeiting. This is his description of what he thinks SOPA and PIPA addressed:
“The ability to copy digitally has permitted increasingly sophisticated forms of counterfeiting. Existing protections need to be updated. All over the world, websites provide counterfeit goods for sale, ranging from computer software to movies to handbags to pharmaceuticals, often masquerading as the real thing. It?s at least a billion dollar industry, a billion dollar criminal enterprise that operates at the expense of hard-working, innovating, taxpaying Americans.”
If he were right, that SOPA and PIPA only addressed counterfeiting, the rest of his arguments would fall into place. Of course, he’s not right.
Re: In fairness to Hanna
Hence the entertainment industry being so eager to get their agenda piggy-backed into SOPA/PIPA and deceiving people into thinking of digital content in the same terms as physical goods counterfeiting…
I’d be pretty pissed off by the poisoning if I was looking at reducing actual counterfeiting through PIPA/SOPA.
Well, here is why he sees “Copyright and Intellectual property” as the end all be all… HE WAS A SALESMAN FOR CBS… So what ya want to bet his still friends with all the CBS/NBC/MPAA/RIAA Copyright supporters?
from his website:
Colin is a former County Commissioner in Chester County, PA (1995-2003). Prior to his election he was a CBS sales executive in New York and Philadelphia;
US Constitution and IP Rights
I’m going to disagree mostly with you on this one Mike. The Constitution DOES guarantee that inventors and authors a limited time, exclusive right, and it requires of Congress that they create that regime.
What is NOT true is that the Constitution requires any specific formulation of that limited time.
Now, in my opinion, the policy pendulum has swung much too far in favor of the “authors” and “inventors” under the candy theory — if one piece of candy is good, then lots and lots of candy must be good.
Re: US Constitution and IP Rights
“I’m going to disagree mostly with you on this one Mike. The Constitution DOES guarantee that inventors and authors a limited time, exclusive right, and it requires of Congress that they create that regime.”
Actually, that’s incorrect. It DOES NOT require that Congress create that regime, it specifically allows for Congress to do so or not do so, but there’s no requirement.
Insofar as it does guarantee that inventors and authors get exclusive rights for a limited time, well that is true. But ONLY if such a regime is created, and SOLELY for the purpose that science and the arts be promoted (or better said advanced).
Re: US Constitution and IP Rights
“if one piece of candy is good, then lots and lots of candy must be good.”
That only makes sense from the point of view of children. Adults know that too much candy is bad for you, and will give you a “tummy ache” at best – or make you violently ill at worst.
Hey, this actually quite a good metaphor 🙂
No one who is a student of history and the US Constitution seriously argues that Article 1, Section 8, Clause 8 is anything other than a grant of power to engage in law making. While there are those who have differing views about the precatory clause, to my knowledge the Supreme Court has not squarely decided the issue (though it has been suggested in dicta that it is not a limitation).
That said, it would be helpful to dispel the “myth” that the First Amendment is “absolute”. It is not, and never has been. This is not to say that it is rife with exceptions, but only that one who reads it in an “absolutist” manner fundamentally misunderstands its reach.
Section 8 Clause 8 does mention copyright.
Re: Re:
“Section 8 Clause 8 does mention copyright.”
Please present the exact quote (and link to the source).
Just so everybody remembers
What a oily political slimeball Colin Hanna is. Read here:
http://www.tnr.com/article/politics/95305/colin-hanna-cut-cap-balance-debt-ceiling#
Not only did the guy work for CBS (maximalist with vested interests in outdated status quo ahoy!), but he was also responsible for the organization of wealthy Christians into the “Let Freedom Ring” public relations group.
You might remember them as the classy gents that did an ad that put a Mohammedan crescent over the White House.
Hey, if the gun lobby can spend over $1 billion dollars to turn the second amendment into a right for ALL citizens to own and carry guns, then why can’t groups like the RIAA do the same thing for copyrights and patents?
(the second amendment actually only gives that right to STATE MILITIAS, and random US citizens are NOT a militia. Because some of the states feared a strong central government becoming another freedom stifling British government they’d have to overthrow, hence the need for the bill of rights to put such limits on the federal government)
Re: Re:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Your reading into just like Hanna did, that statement doesnt say STATE MILITIAS…
See everyones able to read what ever they want in to support their personal pet pieve (Guns, Drugs, Speech, Copyright). You are mostly reading what you want where you want it to support what you like or dont like…
seeing as how im just a dirty pirate anyway… i would sure find a letter of marque very handy…
Wait a minute, letter of marque, a license issued by a nation allowing a private citizen to seize goods or citizens of another nation? Isn’t that basically what the publishers want?
Re: Re:
They want something even more powerful than a letter of marque. If you’re a privateer, the loot you gain from your acts of piracy technically belongs to the entity that gave you the letter of marque.
Publishers want to keep the loot for themselves.
Or not...
“set forth so plainly”
You know, or not…
How does one protect what doesn't exist?
Intellectual Property? Oxymoron – it does NOT exist.
It never has, it never will.
So stop with spending all the billions (in bribery) to try and write laws to protect something that does not exist.
Once an idea is shared, it’s shared, end of discussion.
Copyrights and Patents are for the public, not the people who copyright or patent their works.
It’s for a *limited* time protection so they will continue to produce and put into the public domain.
Corporations aren’t people, and therefor cannot own copyrights or patents – why do we allow these to stand?
When the trolls/shills are so active its because Mike hit a nerve….
“Copyright”
“Intellectual property”
“Freedom of expression”
“Separation of church and state”
These phrases are found nowhere in the Constitution.
Re:
“Freedom of expression”
“Separation of church and state”
The first amendement says; “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Also, the First Amendment to the United States Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ….”
Also, Article VI specifies that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
Meaning; the goverment must remain neutral towards religion, the goverment cannot give special treatmen to one religion over another religion or the lack of a religion.
The only actual mandate in the copyright clause is that copyright be for limited times and that it “promote the progress of science”
So if anything public domain is the consitutional right.
All the constitution gave us is government.
Re:
Exactly. The phrases “freedom of expression” and “separation of church and state” are not in there.
Like a bible thumper choosing which passages to quote or implement.
The design of the US Federal Government is such that it only has the powers it’s granted by the Constitution. In the case of “intellectual property”, there isn’t just a ‘what” but there is also a “why’.
So why do you just want to ignore that part? Why do you want to ignore the part of the law that seems inconvenient to you?
Our government was founded by minimalists. That as well as any stated motivation or justification for a particular bit of law needs to be taken into consideration when contemplating public policy.
Copyrights and Patents are not neutral. They cause harm and they require government meddling to implement.
Another fine strawman.
The militia is not an unknowable concept. It is well understood within the context of the given text. In that context, it’s pretty obvious what kinds of arms are implied.
The 2nd amendment makes more sense if you have any clue about history or have EVER ventured away from a major urban center.
US Constitution and IP Rights
> and it requires of Congress that they create that regime.
No. It ALLOWS that Congress may make such a regime.
Your reading comprehension fails you.
Nonsense like yours is how stuff gets distorted over time. The Big Lie starts and then gets repeated and built on until the commonly accepted propaganda bears little resemblance to reality.
Buy a better dictionary.
In the context of the US Constitution, “The Militia” is the entire population of the country that is eligible to be drafted. The 2nd Amendment is more in the spirit of Agincourt, or the Swiss or Israelis. The original motivations for founding the NRA were very much along these lines (promoting marksmanship).
The Militia is not the police.
The Militia is also not the National Guard.
By Precedent (to Average Joe, #51)
Nobody’s said it’s “unlimited”, only that it’s so long that it no longer fulfils the intent of being “limited”. Apart from pure greed on the part of artists and their families, can you give any good reason for copyright needing to be extended from 14-28 years to anything up to 170-odd years? How is an artist being encouraged by copyright when they’re dead? Was it the intent of copyright to provide welfare for several generations of an artist’s family? You regularly claim the moral high ground in copyright discussion, but personally I believe the length of copyright is just as immoral as you think copyright infringement is.
Re:
“The constitution doesn’t say that copyright or patents would have to satisfy your personal progress, and certainly not the short term progress of anything.”
I don’t recall anyone making any comment about “personal progress”, only progress of society as a whole, so that’s a bit of a strawman argument.
“Remember that, if at the end of it all, you are even marginally ahead, you have still made progress. If a single additional song is written, or a single extra new drug created, or a single new device made, then you have progress.”
And Techdirt has pointed to dozens and dozens of examples of copyright laws preventing the creation, release or distribution of music, films, devices, technology, etc. By your argument, if a single item is prevented from being created, you have the opposite of progress.
“You may not LIKE the progress, you may feel there is more progress in other routes. But the reality is that congress are the only ones who get to decide if progress is made…”
Actually that’s not true. Congress gets to decide if examples of progress are legal or not. The true arbiters of progress are the public, who are always more than happy to follow along behind real progress whether it’s legal or not. You may not LIKE the progress, but good luck stopping it.
“I would say you need to give AJ some space – what he is saying is true. You might not like it, but he isn’t lying.”
Reread what Joe and Mike said. Joe claimed “Of course, the anti-copyright crusaders love to leave out the means part of the equation.” This is indeed a lie, and Mike called him out on it.
Re:
as Christina said I’m alarmed that any body able to make $7668 in one month on the internet. did you look at this web site >>>===⇛⇛⇛⇛► Silver16.comHOW TO MAKE ONLINE CASH? READ IT! GET IT!START IT!!
Re:
It’s quoted above on this thread.
Here it is again: “The Congress shall have Power…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;”
It mentions copyright in the same sense that the 2nd amendment mentions guns, i.e. by referring to the meaning without using the word.
I don’t see what the fuss is about.
Just as Mike says, I can’t see a constitutional right for intellectual property ownership in 1-8-8. Like all these clauses, this clause has to do with powers of government. Unlike the 1st, 2nd, etc amendments, it does not refer to a prohibition on government action respecting inherent rights, but a power to “secure” rights.
Presumably these are statutory rights, not natural rights, and secure means “grant” rather than “defend”.
If you argue, as many do, that there is a natural right to intellectual property, not enumerated in the Constitution, then it is fair to say that the Constitution gives material support to this right (in 1-8-8).
I don’t know why all the stridency.
Just as Mike says, I can’t see a constitutional right for intellectual property ownership in 1-8-8. Like all these clauses, this clause has to do with powers of government. Unlike the 1st, 2nd, etc amendments, it does not refer to a prohibition on government action respecting inherent rights, but a power to “secure” rights.
Presumably these are statutory rights, not natural rights, and secure means “grant” rather than “defend”.
If you argue, as many do, that there is a natural right to intellectual property, not enumerated in the Constitution, then it is fair to say that the Constitution gives material support to this right (in 1-8-8).
I don’t know why all the stridency.
more dissembling by Masnick
The word on the street is that Lee, Jaffe, Lerner and you are all funded by the world’s largest invention thieves who for years have been trying to bribe Congress into passing changes in the patent laws to enable the big thieves to steal their small competitors inventions and drive them out of business.
?Patent troll?
Call it what you will…patent hoarder, patent troll, non-practicing entity, shell company, etc. It all means one thing: ?we?re using your invention and we?re not going to pay or stop?. This is just dissembling by large invention thieves and their paid puppets to kill any inventor support system. It is purely about legalizing theft. The fact is, many of the large multinationals and their puppets who defame inventors in this way themselves make no products in the US or create any American jobs and it is their continued blatant theft which makes it impossible for the true creators to do so.
It?s about property rights. They should not only be for the rich and powerful. Show me a country with weak or ineffective property rights and I?ll show you a weak economy with high unemployment. Does that remind you of any present day country?
Prior to eBay v Mercexchange, small entities had a viable chance at commercializing their inventions. If the defendant was found guilty, an injunction was most always issued. Then the inventor small entity could enjoy the exclusive use of his invention in commercializing it. Unfortunately, injunctions are often no longer available to small entity inventors because of the Supreme Court decision so we have no fair chance to compete with much larger entities who are now free to use our inventions. Essentially, large infringers now have your gun and all the bullets. Worse yet, inability to commercialize means those same small entities will not be hiring new employees to roll out their products and services. And now some of those same parties who killed injunctions for small entities and thus blocked their chance at commercializing now complain that small entity inventors are not commercializing. They created the problem and now they want to blame small entities for it. What dissembling! If you don?t like this state of affairs (your unemployment is running out), tell your Congress member. Then maybe we can get some sense back in the patent system with injunctions fully enforceable on all infringers by all inventors, large and small.
Those wishing to help fight big business giveaways should contact us as below and join the fight as we are building a network of inventors and other stakeholders to lobby Congress to restore property rights for all patent owners -large and small.
For the truth about trolls, please see http://truereform.piausa.org/default.html#pt.
Re:
Indeed not! I may not be a pastafarian myself, but I am familiar with his noodly appendage.
Re:
So what exactly do lawyer gonads taste like? Oh… gonnabe
Good thing your not contemplating a profession that relies on clear and concise use of the English language…
Re:
I’ve heard of straw men, but straw pillars?
Re:
Only in the absolute sense. The meaning of them is quite quite clear. Unless you’re a lawyer.
Re:
Gun freaks are so goofy and confused. The Constitution does not provide rights, it simply enumerates some of them.
Re:
And gives us a government that violates them.