Comments on: Unconstitutional Copyrights?

By: laptop battery

laptop battery — Thu, 05 Nov 2009 12:20:08 +0000

This is great news. Best of luck for the future and keep up the good work.

By: laptop battery

laptop battery — Thu, 05 Nov 2009 08:20:08 +0000

This is great news. Best of luck for the future and keep up the good work.

By: Debbie

Debbie — Thu, 06 Aug 2009 17:13:17 +0000

I posted a blog on this at http://blog.actonline.org/.

By: Debbie

Debbie — Thu, 06 Aug 2009 16:13:17 +0000

I posted a blog on this at http://blog.actonline.org/.

By: Reasons Why Copyright On Art And Music Could Be Deemed Unconstitutional | PHP Hosts

Thu, 06 Aug 2009 06:03:32 +0000

[...] this, and some other aspects of the early intentions of the founders, you can make an argument that copyright law, as per the constitution, was never intended for things like art and music. After all, what does art or music have to do with “science”? And if it really was [...]

By: Tom W. Bell

Tom W. Bell — Wed, 05 Aug 2009 16:13:54 +0000

Steve R.: Thanks for that cite. I'd seen the paper abstracted on SSRN, and thought, "Yes, that makes some sense as a policy matter." Interestingly, though, in the present context, I think I'd have to say, "But academic works constitute one of the slight percentage of works now covered by copyright that the U.S. Constitution actually authorizes copyrighting!"

I guess one might conclude that much of what federal lawmakers can do, they should not do.

By: Tom W. Bell

Tom W. Bell — Wed, 05 Aug 2009 16:09:49 +0000

Laureen Urquiaga: Or, perhaps you might add, ". . . the framers didn't intend them to be restricted in the Constitution, *but rather thought it better to protect the fine arts under the First Amendment."

By: Laureen Urquiaga

Laureen Urquiaga — Tue, 04 Aug 2009 20:34:08 +0000

Mr. Vey should be even more upset. As I read clause 8, it seems very clear to me that “science” (or knowledge, as I understand the term would be understood today) is the sole subject matter for copyright, and “useful arts” are actually to be protected by patents. So neither concept embraces aesthetic creations. That doesn't mean aesthetic endeavors have no value or utility, simply that the framers didn't intend them to be protected in the Constitution.

By: Tom W. Bell

Tom W. Bell — Mon, 03 Aug 2009 17:32:53 +0000

Thanks, Mr. Block, for your comment. You speak of "the origin of the US copyright system," but I'd date the copyright wars from the mid-1800s. Webster, foremost among others, pressed the case for states' copyright protections and, later, the Constitution's. He, of course, had not international but national interests.

By: Jason Block

Jason Block — Mon, 03 Aug 2009 16:15:39 +0000

Based purely on a deconstruction of the Constitution removed from any historical context, your argument is sound. However, an examination of the legal and business climate surrounding the origin of the US copyright system reveals that the intent of the law was to balance the rights of the publishers in the US who were used to printing whatever European material they could get ahold of, i.e. the 'free press', with the rights of authors and the publishers those authors chose to have exclusive rights to thier works.

By: Reasons Why Copyright On Art And Music Could Be Deemed Unconstitutional | Pixseekers

Sat, 01 Aug 2009 23:22:56 +0000

By: Click World News » Blog Archive » Reasons Why Copyright On Art And Music Could Be Deemed Unconstitutional

Fri, 31 Jul 2009 19:51:11 +0000

By: Reasons Why Copyright On Art And Music Could Be Deemed Unconstitutional | Nuze.me

Fri, 31 Jul 2009 19:18:53 +0000

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Fri, 31 Jul 2009 18:25:59 +0000

[...] Unconstitutional Copyrights? That effort has led me to revisit copyright’s constitutional foundations. I find them very shaky, indeed. [...]

By: Steve R.

Steve R. — Wed, 29 Jul 2009 17:26:42 +0000

Tom, you may be interested in: Should Copyright Be Abolished On Academic Work? at TechDirt.

By: Tom W. Bell

Tom W. Bell — Wed, 29 Jul 2009 15:55:42 +0000

Thanks for the encouraging words, Mr. Reasons!

Ditto, Steve R, and thanks for your other comments, too. I address the property rights approach at some length in the book (and voice skepticism that it works very well). Alas, I doubt I'll get to the BDA; so many bad laws, so little time . . . .

Mr. Claburn, I think you offer the line of counter-argument that would most likely carry the day were the issue litigated, given the S.Ct.'s extreme deference to lawmakers' justifications for acts. But given that I think we should read the Constitution to embody a presumption of liberty, I also think that that sort of deference errs.

As regards originalism, while I am not myself an adherent of it, I am not sure that the fundamentals of public policy have so changed in the last 200 or so years as to render the founders' meanings useless. It is for other reasons that I argue for giving the Constitution its plain, present, public meaning. And, on that view, my arguments for narrowing copyright still stick.

I don't see anything fundamentally wrong with the fashion industry (or furniture design, or auto body innovation, or creativity in perfumes, to name some other industries that lack copyright-like restrictions). Do we suffer a lack of new styles? I, at least, haven't suffered on that front.

By: Jason Vey

Jason Vey — Wed, 29 Jul 2009 15:55:24 +0000

Indeed, I find it personally insulting to de-value aesthetics as non-useful. Almost any doctor will tell you how important entertainment, play, and escapism are to psychological development and mental health. Remove protections from those who produce aesthetic works, and those folks will have no more reason to pursue that avenue. With the disappearance of those works, society will inevitably degrade. Aesthetic art and fiction are absolutely NOT useless pursuits.

Not to mention, this reading fails to take into account the inalienable rights spelled out in the Declaration of Independence. While this document is not a legal document, it does spell out the basis upon which the Constitution was written. By taking away copyright protections from artists, you are robbing them of the ability to pursue a living using their inherent gifts and talents, and thus interfering with their right to the pursuit of happiness.

By: Thomas Claburn

Thomas Claburn — Wed, 29 Jul 2009 13:24:54 +0000

Your argument relies on too narrow an understanding of "purely expressive" arts. Look at the impact of science fiction on technological research and development. Clearly, creating incentives to create works that provide a possible blueprint for the future of science falls under the "useful" category.

It is "useful" to society to promote social stability and mass market entertainment largely does that.

Moreover, the utility of a work of art is not always apparent at the moment of creation. The government should not be in the business of attempting to predict what will be "useful." Thus a broad definition is necessary.

Doing away with copyright for aesthetic works would result in a situation similar to that which exists in the fashion industry, where large players copy the design innovations of the small with impunity.

Frankly, arguments based on the original intent of the framers fail because the social, legal, political, and technological context today differs from what it was.

Thousands of years ago it may have made sense to insist on a prohibition against eating shellfish, for example, due to lack of understanding of the health risks. Today, not so much.

By: Steve R.

Steve R. — Wed, 29 Jul 2009 13:09:14 +0000

Excellent Post. Since this an excerpt from a book, my comments could be covered elsewhere in your book.

Based on comments made by many copyright apologists asserting that a "strong" copyright is needed, we have lost sight of what copyright was meant to do. The current interpretation, is that copyright is akin to a "toll-both" to entitle the creator to an endless revenue stream based on work created in the past. You correctly note that: "Taking “Science and useful Arts” seriously would thus radically narrow the proper scope of copyright."

But a related constitutionality issue concerning the intent of copyright, is the issue of "limited duration". Unfortunately, the US Supreme Court in Eldred v. Ashcroft made the extremely bad decision of allowing the duration of copyright to be extended. Nevertheless, for copyright to be considered constitutional as originally envisioned requires that copyright be of limited duration to both encourage people to produce new content and to get the content into the public domain to further the progress of "Science and the useful Arts".

PS: A property rights aspect that has yet to attract attention, is that property held in the public domain is a valid property right. What I am getting at is that copyright maximalists are claiming increased property rights at the expense of the public. To me, the copyright maximalists are actually "stealing" from the public by claiming so-called property rights that they never possessed in the first place.

PS PS: Do you think there is room in your book for the Bayh-Dole Act? Technically this relates to patents, but it is another example of how something (publicly funded research) that should be in the public domain can become the so-called intellectual property of a university, non-profit, or private business.

By: Eric Reasons

Eric Reasons — Wed, 29 Jul 2009 11:13:00 +0000

While I've questioned whether or not copyright actually fosters innovation, and I've questioned whether it can survive in competition with a culture of participation, I never before now questioned its constitutionality.

Mr. Bell, that's a positively fascinating argument. I imagine, like many arguments that appeal back to the framers of the Constitution, it will fall of deaf ears through long years of habit, as you say; but a sound argument nonetheless.

By: Glyn Moody (glynmoody) 's status on Wednesday, 29-Jul-09 07:10:53 UTC - Identi.ca

Wed, 29 Jul 2009 07:11:03 +0000

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