Re: copyright of briefs

On 10/18/96, Bruce Hayden <bhayden[_at_]copatlaw.com> said:
>
> Maybe its just the way you phrased this, but my view is that copyright
> is Constitutionally on a par with free speech.

Well the question really is whether the constitutionally stated purpose of copyright has any force as a limit, isn't it?

Don't we have a host of exceptions to the Bill of Rights in the body of the Constitution, and hasn't the courts' normal course been to narrowly construe the exception to what is necessary for the purpose of the exception, particularly when it affects one of the favored rights?

Do you think the commerce power would allow the Congress to forbid the selling of political news items across state lines?

In that murky and deserted decisonal area of the Second Amendment, has not the purpose of the right to bear arms been construed in conjunction with the purpose of a "well regulated militia"? Why would the copyright power not be similarly construed in light of its stated purpose?

Retroactively increasing the copyright term for dead authors would seem to squarely raise the issue. Certainly such a retroactive extension does not encourage the dead to write more, unless the profit incentive is somewhat more powerful than even the most fervent free market economist has dared claim.

Moreover, as a matter of necessity, an Amendment and the original text are not on an equal footing. Presumably they would not have been seen as equal by the states that agreed on ratification only on the understanding that the first ten amendments would limit the federal government's excercise of its powers.

It would seem to me that limitation of the copyright power to its stated purpose is almost necessary to preserve the copyright power against the force of the First Amendment.

Regards,

John Lederer
<johnl[_at_]ibm.net> Received on Mon Oct 21 1996 - 04:08:10 GMT