Re: Copyright & The New World Economic Order

On Thu, 22 Jul 1999, Nick Zales <zales[_at_]execpc.com> wrote:
>
> On Wed, 21 Jul 1999, Steven D. Jamar <sjamar[_at_]law.howard.edu> wrote:
> >
> > The Old Testament says "Thou shalt not kill." But it also requires
> > stoning to death. How does one square these two instructions? It
> > is ok under US law to kill someone in self defense. So even the
> > most certain of laws carries with it ambiguity, exceptions,
> > limitations.
>
> That's an easy one. "Thou shalt not kill" refers to murder, not
> to a justified killing of an evil person as a punishment. (BTW, I
> oppose the death penalty because it does not work and is applied in
> the US based on class and status.)

I can only surmise that among U.S. Constitutional legal scholars, there's not much interest in exegesis and hermeneutics: "just interpret the Constitution and its wording based on what we think the words mean today", instead of trying to understand the original intent of the Framers, and use that as the basis for interpretation when there's any ambiguity or uncertainty, including that due to the inexorable shift in the English language.

This "worship" by constitutional scholars of the vagueness and brevity of our Constitution really troubles me. It may have worked fine the last century or two, but as our society continues to evolve and our language changes, our drift away from the original intent, which I believe is important to give us a necessary bedrock to build our whole Constitutional government upon, will continue. It also opens the door to egregious abuse by any political group that is able by circumstance to pack the Supreme Court with extremists of their view, who can conveniently use the vagueness and ambiguity to advantage.

Of course, some say we have to evolve our interpretation, and having a Constitution which is intentionally broad and vague is necessary. But I counter that the evolution of our Constitution should be done primarily by carefully written and publicly debated amendments, and not by the whims of the ever-changing Supreme Court. If anything, we need to make the amendment process a *little easier* (not a lot easier, just a little easier), so we can continue to refine our Constitution in the proper way.

Regarding copyright law, my views on it are well known to some of you here. (This is the first time I've posted to this mailing list). Suffice to say I believe copyright law has drifted away from the original intent of the Framers of our Constitution, who specifically called for a "limited time".

Of course, when I've mentioned this before, it is interesting that the usual arguments justifying very long copyright terms revolve around interpreting the phrase "limited time" totally independent of the context of when it was written, that is, to use our present understanding of language, and not that of 18th century English, to interpret this phrase to mean the same as "not perpetual". So, by this sleight of word logic independent of intent, a one trillion year term of copyright is "limited" by this convenient re-interpretation of language, and thus would be constitutional.

(Interestingly, when I previously mentioned the example of a million or or billion year copyright term, the supporters of equating "limited time" with "not perpetual" then said that the courts would probably rule this to be unconstitutional. But this begs the question: What copyright term would be deemed unconstitutional? How do we establish where the line in the sand is? It can *only* be done by abandoning the "not perpetual" interpretation, and, lacking any other basis to decide, to return to original intent of the framer or framers of the Copyright Clause, including rationally looking at the broad purpose of copyright law.)

The first copyright law established the copyright term to be 14 years, and soon thereafter allowed a 14 year extension. And this law was passed while the ink on the Constitution hadn't even dried yet. It would not surprise me if the "limited time" clause of copyright in our Constitution was never intended to be much longer than this, either due to the framer of this clause being sloppy, or he had a number in mind but couldn't get others to agree with it, or because he just assumed everybody knew what "limited" meant at the time and assumed everybody would simply interpret it "properly".

Since it is probable there are scholars here who have studied the history behind the copyright clause in the U.S. Constitution, I would like to know what was the original intent behind the term of copyright (if this is even known), and if the framer(s) of that clause were transported here today, would they be troubled by current terms and the continued pressure to go to perpetual copyright terms. Something tells me that to many of you, it makes no difference what the original intent was, and this is *really* scary, as such a philosophy of Constitutional interpretation puts us on a very slippery slope that can lead to a rollback of our civil liberties by simple "re-interpretation".

BTW, has there been any court ruling on what the phrase "limited time" in the copyright clause of the U.S. Constitution really means? Has anybody challenged copyright term extensions based on this?

Jon Noring
<noring[_at_]netcom.com> Received on Fri Jul 23 1999 - 17:03:34 GMT