Re: "Against Intellectual Property"

"Laurie Urquiaga" <Urquiagal[_at_]lawgate.byu.edu> wrote:
>Linda said:

>>I am a strong supporter of copyrights since that is the law, but I
>>believe that we should be able to change the law to react to the
>>times and protect creators against infringement as the Constitution
>>gave Congress the power to do. But then I was talking about the
>>government action of limiting the term of copyrights.

>This doesn't seem to recognize that it is the CONSTITUTION that specified
>that copyrights should exist for limited terms. The Constitution thereby
>specifically prohibits Congress from granting perpetual copyright terms,
>although they seem to be trying their best to circumvent that part of the
>clause. And, of course, careful reading of the clause makes it clear that
>the only reason the founding fathers gave for allowing this temporary
>monopoly was the resulting anticipated enrichment of the public domain. The
>concept of copyright as personal property in perpetuity doesn't appear to
>have had any appeal for the founding fathers at all.

I recall it being said here and on misc.int-property (a Usenet newsgroup) that prior court rulings seem to suggest that what constitutes "limited" is within the power of Congress to decide. That is, Congress can specify a copyright term of 1,000,000 years, and since that is "limited", it would be valid, even if in any real sense it is forever. (Eric Eldred can certainly shed light on this since I think his lawsuit centers on this very issue.)

This reminds me of how the courts have gotten so deep into semantics (word games) that they oftentimes overlook or even ignore original intent (the hermeneutics). An example of this silliness (and a dangerous silliness from a civil liberties viewpoint) is the part of the 5th Amendment saying that a person "shall [not] be compelled in a criminal case to be a witness against himself." Of course, the Supreme Court has ruled, in their infinite wisdom, that a person can be compelled to turn over a key or password which might incriminate them, since the turning over of the key or password is in and of itself neutral, not incriminating the person. But in my opinion this is simply word games by those who find the Bill of Rights an inconvenience and I'm certain our Founding Fathers would be appalled at how our civil liberties have eroded these last two centuries by playing such word games. (And note, too, that over time the actual meanings of words themselves change, another important reason to heavily use hermeneutics in applying the Constitution.)

So, too, with "limited" in the Copyright Clause of the Constitution. I believe "limited" there means **limited**, and one must look at the original Copyright Act for guidance of the hermeneutics of what is meant by "limited," and here limited is 14 years -- not that long of time. Shortly after, it was expanded another 14 years with renewal, for a total of 28 years, a term which then lasted throughout the whole 19th century if I recall correctly. It is clear that our Founding Fathers felt comfortable with copyright terms being 28 years. Any substantial extension above this should be, in my opinion, carefully and somberly scrutinized for Constitutionality, which unfortunately has not been the case the last few decades of one copyright extension after another -- as far as I know, there was never any discussion by Congress on the very Constitutionality of these extensions, and if the enacted extensions went beyond the intention of the Copyright Clause. Did Congress ever do the requisite studies to determine what term of copyright best benefits the People as is the intent of the Copyright Clause? I doubt it.

Just my opinions, of course.

Jon Noring Received on Wed Aug 30 2000 - 01:44:23 GMT