Re: HR 354 Antipiracy Bill

On 30 Aug 99, Albert Henderson <noblestation[_at_]compuserve.com> wrote:
>
> On Fri, 27 Aug 1999, Peter D. Junger <junger[_at_]samsara.law.cwru.edu> wrote:
> >
> > Perhaps those of us who do not share Mr. Henderson's opinion should
> > send Representative Coble a response.
> >
> > These are some of the points that I can think of off hand:
> >
> > 1. If Feist is a constitutional decision, as it says it is, then
> > the proposed act would be unconstitutional.
>
> I think this is inference, not fact. The constitution doesn't
> say anything about compilations of fact. It gives the power to
> Congress ... "securing for limited times to authors and inventors
> the exclusive right to their respective writings ..."

Remember, Congress is limited to exercising only those powers which are granted by the Constitution (unenumerated powers are reserved). Thus, unless there is an explicit grant of authority in Article III or one of the amendments, Congress may not act.

It can be argued that the power to "protect" (guess which side of this issue *I'm* on) databases comes from the Commerce Clause. However, I think that this argument may prove too much (as Commerce Clause arguments often tend to do). Remember also that the limitations on Congress' copyright authority (such as the idea/expression dichotomy, relevant I think in this discussion) are often cited as operating to protect First Amendment rights -- and the First Amendment (if it can be shown to apply) trumps the Commerce Clause.

In any event, my only point is that the mere fact that the Constitution is silent w/r/t collections of information does not mean that the proposed legislation is hunky dory.

Happy trails,
Rod

Rod McCarvel
<rod[_at_]seanet.com>

"The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."

          -Anatole France Received on Tue Aug 31 1999 - 21:42:39 GMT