Re: "Against Intellectual Property"

On Wed, Sep 13, 2000 at 08:38:16AM -0400, Kevin Grierson wrote:
>
> Mr. Noring's original point is that courts and the legislature will often limit or expand upon particular clauses in the Constitution until their meaning isn't recognizable any more. I think the point of the pending Eldred v. Reno case is that the Cons
titution's allowance of copyright to an author "for limited times" has been rendered completely meaningless by the current life + 70 years term. I'm inclined to agree with that argument.
>

No doubt the courts and legislatures can amend the Constitution and interpret its meaning--in light of how to apply to present life this great "engine" of progress.

In the case of Copyright law, it seems to many of us that Congress and the lower courts have cooperated with publishers to try, in effect, to get around the Constitution and instead adopt treaties and statutes that set in stone some alien natural rights theory of copyright. This practice has tried to extend new rights to copyright holders and has greatly restricted the public domain--the result has been to badly tilt the careful balance the Framers put explicitly in the Constitution.

Not only is this the concern with the Sonny Bono Copyright Term Extension Act, but it is also the basis for an amicus brief concering the DMCA, now being prepared in the OpenLaw section concering the appeal Universal v Remeirides (should be Eric Corley now) in SDNY, see
http://eon.law.harvard.edu/openlaw/DVD

We pray that the appeals courts and Supreme Court will scrutinize these unconstitutional statutes and reject them. We ask for your help in developing the discussion and arguments, on both sides, because the issues are so important. If you are a law professor, please suggest your students get involved.

I don't think it's an exaggeration to propose that the correct analogy here is not with the 14th Amendment, but with the 13th Amendment. I'll proceed with a long explanation:

Before 1860, the U.S. courts interpreted the Constitution as establishing a careful balance between states, and recognizing that some states allowed owning slaves, while others did not. In cases such as the fugitive slave laws or the governance of territories such as Kansas, or even the war with Mexico, the issue of slavery was injected into political life more and more. Abolitionists burned U.S. flags, publicly trampled on the Constitution, and even engaged in terrorism as in the instance of John Brown, who enjoyed financial and intellectual support from such people as Thoreau. But they were not able to pass an amendment to the Constitution, because of the requirements that any amendment be passed by state legislatures. The inability of the courts to interpret the Constitution in such a way as to adapt to facts of modern life only resulted in a civil war with hundreds of thousands of deaths.

But this war did not solve the problem of involuntary servitude. It persisted in one form or another for many years, and required another civil rights movement and revolution before there was progress on this point.

Where does the 13th amendment arise? It abolishes slavery in all the states of the U.S. (the Emancipation Proclamation only affected border states) But it could only be passed by an artificial device: military governments occupied Southern states and Confederate veterans were excluded from the political process. When Congress sat to consider final adoption, it was faced with a new problem: two state legislatures had revoked passage of the amendment, so if they were excluded the sufficient numbers for passage would not be obtained. Therefore Congress simply played a little trick: it chose to ignore the fact that the required majority had not passed the amendment, and instead counted those two legislatures in favor of it. The Supreme Court agreed with Congress, and the 13th Amendment went into effect to ban involuntary servitude.

In the case of slavery, the courts inadequately responded to a political and social challenge, and failed to be able to adapt the Constitution to modern times. The abolitionists who trampled on the Constitution won political power, forced a war resulting in death and destruction, and even after that war proved unable to change public opinion toward implementation of their policies--it was only a long process of gradual adaptation and further economic and social changes that abolished segregation in parts of U.S. life.

In the case of copyright, we have a situation where some plantation owners (of media, not cotton) seek to retain economic power by changing the laws unconstitutionally in their favor. Many people have reacted by ignoring and defying these new laws. The result is likely to be a conflict that jails many and might involve widespread disregard for the law. The result no doubt will not be "progress of science and useful arts," and increased publication of ideas, but instead increased encryption and use of the laws to protect trade secrets and unpublished material.

A few of us would like to suggest that the courts use the Constitution to avoid this conflict. By adapting the wise ideas of the Framers, we can understand how to use modern technology in service to our mutual goals. By explaining the proper role of copyright law, courts can have a great effect in maintaining our intellectual and economic progress. The commons will be protected and public debate will flourish. The Internet will remain a haven for free speech instead of being made safe for e-commerce by ejecting protestors.

In the 19th century, the great issue for Americans was slavery. This issue was not resolved even by the 13th Amendment. At the beginning of the 21st century, the great issue for the world is "intellectual property." How will it be resolved? Received on Thu Sep 14 2000 - 16:47:02 GMT