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Copyrights and Copywrongs
Skywise writes: "MSNBC has a very good article looking at the history of copyrights, their implementation into law by the founding forefathers to protect democracy, and the extreme danger the DMCA will be to our country."
That's how it started, where the idea came from. Past that, the evolution has been different in each country.
In England, there was a famous case in the 18th century through which some publishers tried to assert a common law 'property right' to copyrights. They failed. The States inherited the English Common Law, sans copyright. That's about all you need to know.
Surfing the net and other cliches...
Surfing the net and other cliches...
(Who Meta-Meta-Moderates the Meta-Moderators?)
This created the legal status quo in the Colonies which continued largely unchanged by the US Founding Fathers.
From Britannica:
For further information see this discussion by Brian Forte.The full text of the Statute is online here
Vaidhyanathan writes: At its birth in England, copyright was an instrument of censorship...In contrast, the American copyright system since 1791 has reflected American republican values.
The statements are correct, but the use of the phrase "in contrast" is misleading. In England, the Star Chamber (which had assisted the enforcement of the Stationers' monopoly) was abolished in the mid-17th century. The licensing acts, which were the legal basis for the Stationers' monopoly, expired in 1694 and were never renewed. The "Act for the Encouragement of Learning", passed in the 8th year of Queen Anne (1709-1710), reformed English copyright on the basis of the same enlightenment values that are incorporated in the U.S. Constitution's monpolies clause. So the beginnings of U.S. copyright may indeed be contrasted with the beginnings of English copyright, but by the time the U.S. constitution was adopted, English copyright had come far from its beginnings. The U.S. Constitution's monopolies clause owed a great debt to the English experience.
Vaidhyanathan writes: Copyright was created as a policy that balanced the interests of authors, publishers, and readers. It was not intended to be a restrictive property right.
This is slightly misleading, since it doesn't make clear the difference between means and ends. The means of copyright are limited monopoly privileges, and these privileges are sometimes reasonably thought of as balancing various interests. The end, or goal, of copyright, is to enlarge the public domain. There is no need for "balance"; the public interest in having an expanding public domain is paramount. The means of copyright might balance interests, but they must always be consistent with the ultimate goal of enlarging the public domain.
Vaidhyanathan writes: James Madison, who introduced the copyright and patent clause to the Constitution, argued in The Federalist papers that copyright was one of those few acts of government in which the "public good fully coincides with the claims of individuals."
Madison's remarks in The Federalist Number 43 are actually misleading, and don't accurately refelect his thinking on matters of copyright and patent. His essay (never published in his lifetime) entitled "Monopolies. Perpetuities. Corporations. Ecclesiastical Endowments" is a better source for his ideas on these matters.
Vaidhyanathan writes: Madison did not engage in "property talk" about copyright.
Actually, he did. In the above-mentioned essay on monopolies, he likened books and inventions to public property. Madison wrote:
"Monopolies, though in certain cases useful, ought to be granted with caution, and guarded with strictness against abuse. The Constitution of the United States has limited them to two cases--the authors of books, and of useful inventions, in both which they are considered as a compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withhold from public use. There can be no just objection to a temporary monopoly in these cases; but it ought to be temporary because under that limitation a sufficient recompense and encouragement may be given."
Madison is likening a book or invention to a piece of land that the public buys from its holder. The copyright is likened to the payment made in exchange for the land. Hence on this analogy, after the copyright or patent is granted, the inventor or author "owns" the monopoly (for as long as it lasts) but the public "owns" the book or invention.
It's true, though, that Madison didn't confine himself to the limits of this public land analogy. His starting point, as Vaidhyanatham shows by citing Madison's correspondence with Jefferson, was that copyrights and patents are monopolies which might be useful, but must be carefully regulated.
Vaidhyanathan writes: Jefferson proposed specific language for an amendment that would have allowed copyrights and patents, despite his doubts, but forbidden any other type of commercial monopoly.
Jefferson's chief fear hear seems to have been abuses of the commerce clause, not the copyright and patent power. But as Vaidhyanathan points out, and as the wording of Jefferson's proposal clearly shows, Jefferson was also well aware (more so than Madison was in 1789) of the dangers of abuses of copyright and patent.
Jefferson's own proposal for the term of copyright and patent was sent to Jefferson a few days later after the above-cited letter. He proposed 19 years, the half-life of an adult generation in his time. (It took him two tries to work this out, and as a result there are two different versions of this letter in his published works, one without the 19 year proposal, and one with it.) Possibly he would have allowed a renewal for an additional 19 years if the author had been living after the original 19 years, but the phrase "their own productions in literature" suggests that he would not have approved of posthumous renewal.
Vaidhyanathan writes: Significantly, the founders did not argue for copyrights or patents as "property."
This is an important point. The phrase "intellectual property" was not yet in existence, but the phrase "literary property" was known. Some readings of the famous case of Donaldson v. Becket, decided by the English House of Lords in 1774, view it as a rejection of the entire notion of "literary property". To what extent copyright law should incorporate property principles was not agreed on all hands. Adam Smith classified copyrights and patents as "exclusive privileges" (not property rights). Mr. Justice Yates, the dissenting judge in the famous case of Millar v. Taylor (King's Bench 1769), classified copyright as a tort right, not a property right. The framers' choice of the words "the exclusive right" in the Constitution's monopolies clause shows that they were aware that the status of copyright and patent rights as "property" was not a matter of fundamental right, but of policy. By specifying "the exclusive right" they gave Congress freedom to incorporate, or not incorporate, property principles in U.S. copyright law as it saw fit. By specifying "limited times", the framers made it clear that property principles could be imported into copyright and patent law only to a limited extent.
Vaidhyanathan writes: Jefferson wrote of copyright, "Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."
Jefferson was writing about patent law, not copyright law, in his 1813 letter to Isaac McPherson.
Vaidhyanathan writes: Fearing, justifiably, that copyright might eventually expand to encompass idea protection, not just expression protection, Jefferson wrote in 1813, "If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispose himself of it."
Jefferson's use of "idea" in this 1813 letter is not a reference to what is now called the "idea/expression dichotomy" of copyright law. This distinction was known at the time (though 18th century authors used other words for it). But Jefferson here was writing in a patent-law context. If he means "ideas" as distinguished form "exression" (as we now style it), still he was referring to what lawyers call "the subject matter of patent". And patents, unlike copyrights, protect "ideas". If we map his patent-law comments into a copyright context, then we must substitute "expression" where Jefferson uses "idea".
But Jefferson, though writing in a patent-law context, was writing at a high level of generality. By "idea" Jefferson was referring to any work of the human mind, not to "ideas" as distinguished from "expressions". The same applies to Mr. Justice Brandeis's statement that "the general rule of law is, that noblest of human productions--knowledge, truths ascertained, conceptions and ideas -- become, after voluntary communication to others, free as the air to common use." By "knowledge, truths ascertained, conceptions and ideas" Brandeis meant "all works of the human mind", not simply "ideas" as distinguished from "expression".
Nevertheless, ideas and expression are not completely separable. Copyright that is too broad in scope or too long in duration eventually inhibits freedom of "ideas", even "ideas" as distinguised from "expression."
Vaidhyanathan writes: Jefferson might not have been happy with the recent trajectory of the law. But he would have gotten a kick out of Napster.
In Jefferson's time, copyright only applied to printed books as published. Public performance and display, and creation of derivations, were public rights.
On the other hand even under a Jeffersonian copyright term of 19 years, or a neo-Jeffersonian term of 30 years (arrived at by applying Jefferson's formula to modern conditions), many of the works swapped over Napster would be under copyright. So even if we scaled back the scope and duration of copyright to reasonable levels, there might still be a compliance-problem involving Napster. If we are going to view copyright as a bargain between the public and the monopolist, the public must hold up its end of the bargain in good faith. And that might mean refraining from file-swapping in some circumstances. I agree with Mr. Vaidhyanathan, though, that the chief problem in copyright today is not infringement by private citizens, but the overreaching greed of the rightsholders.
I prefer anarchy, but only under a strong & wise anarch
Good fluff article for Americian, rewriting history to suit thier egos.