Actually Karl, the Constitution tasks Congress with that. Copyright itself is not enshrined in the Constitution.

The purpose of copyright, however, is enshrined in the Constitution:

It will be seen, therefore, that the spirit of any act which Congress is authorized to pass must be one which will promote the progress of science and the useful arts, and unless it is designed to accomplish this result and is believed, in fact, to accomplish this result, it would be beyond the power of Congress.

• House Report on the Copyright Act of 1909

It may seem unfair that much of the fruit of the compiler’s labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not “some unforeseen byproduct of a statutory scheme.” It is, rather, “the essence of copyright,” and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but “to promote the Progress of Science and useful Arts.”

• Feist v. Rural

  That’s why the cries of “unconstitutional” surrounding various enforcement actions or court decisions fall on deaf ears.

  The Courts have traditionally allowed Congress a huge amount of leeway when they determine what does or does not “promote the Progress of Science” (here, meaning “learning” or “culture”). Far too much leeway, IMO, but there is a good reason for this. Congress is supposed to be the voice of the people. And copyright is supposed to be a voluntary contract between the public and authors: the public voluntarily gives up some of its free speech and property rights, granting a monopoly on those rights to authors, in exchange for “broad public availability of literature, music, and the other arts.” (Twentieth Century Music Corp. v. Aiken.)

  Thus, if the people (through Congress) decide what contract is fair, it is largely outside the scope of the Courts to intervene. But it is a fact that Congress is required to make this sort of determination, and in any challenge to copyright statutes, the Courts have determined whether they did. If they did (and they have thus far), then the Courts have a hands-off approach, even if that “determination” is questionable.

  Simply put: to the degree (which you overstate) that “the cries of ‘unconstitutional’ […] fall on deaf ears,” it’s primarily because the Courts trust the judgement of Congress. This is unfortunate, because when it comes to copyright law, almost no members of Congress are the “voice of the people.” They are the voice of the highest donor, and corporate copyright interests have been throwing money at Congress for decades.

  …But this is all a red herring. OOTB believes that all of us would turn on Mike, because he is “pro-copyright” for thinking that copyright must adhere to its Constitutional requirement. He is right that it makes Mike “pro-copyright,” to some degree, but wrong that most people here ever thought any differently.

  Mike simply believes that copyright must in fact benefit the public – as shown by empirical evidence, and not taken on faith or unproven theories, or from the biased beliefs of rights holders. That does not make him, or anyone who agrees with him, “anti-copyright.” But OOTB can’t accept that anyone who doesn’t adhere to their own beliefs is anything other than “anti-copyright.”

  I’m just pointing out that he’s wrong. Then again, he’s always been obviously wrong, about pretty much everything, so maybe I shouldn’t have bothered.