Quoting from the United States Constitution, Article 1, Section 8, Clause 8:
[The Congress shall have Power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
I don't think that, except for the famous opening phrase of the Second Amendment (and of course the preamble), there is anywhere else in the Constitution where the founders felt the need to explain WHY they were promulgating a law or delegating a power.
It's pretty unusual for a law (except perhaps in its preamble) to EXPLAIN itself. Laws are pretty dry -- they typically state a proscribed behavior and the penalty for it. They don't say "Becase such-and-such is harmful to the public blah blah blah".
For instance, the First Amendment doesn't do this. It doesn't say WHY the press must be free. The founders perhaps thought it obvious, but perhaps rather they would have found the wording of an explantion too difficult and controversial -- should an reason-for clause have spoken just of political speech, or explicity covered commercial speech, or just all speech, or with an exception for profanity etc.? At any rate, they left it for later generations to interpret.
They didn't do that with the copyright/patent clause. They SPECIFICALLY extended to Congress this power ONLY to "promote science and useful arts". By useful arts, they meant craft, engineering -- today we would probably use the phrase "science and technology". Same thing.
I THINK that they had a REASON for that.
That's the thing about the Constitution, you know. The words in it MEAN something, and they were put there for a REASON. And the first part of Article 1, Section 8, Clause 8, is pretty straightforward.
If the clause read "to promote science and useful arts, and for any other reason as Congress shall determine...", that would be different But of course, that would have made the phrase meaningless. I think that we have to assume that It DOES have meaning, and that it means what it says.
It's clear to me that the purpose of the explanation is to restrict Congress's copyright/patent powers over the people to a narrow area. Semantically, the meaning of the phrase is basically "to promote science and useful arts, and for no other purpose..." Now it doesn't say that, and that perhaps would have been too strong for the founders. But that's the gist of what they were saying.
The Constitution does NOT say "To promote the Stability of Business...". It does not say "To Reward Those who have Striven to create Works of Beauty...". It does not say "To Protect Those who have Organiz'd such Associations as may Represent Men who are as Moguls in the Distribution of Artistical Treasures". It does not say "So that Outrageously-Tress'd Youths may Prance upon Stage whilst Garb'd in Tight Tunics which Mimic the Hide of the Leopard and produce All Manner of Disagreeable Cacaphony whilst Disrespecting their Elders and Recieving the Fair Regard of Maidens, and Yet be Rewarded for their Efforts by a Sume of Monies which shall be Sufficient to Obtain all of the Noisome Ingestants in Newe England, with Sufficient Remaining to Purchase a newe Fast Coach for each remaining Day of their Lives..."
No, it just says what it says.
Now, of course the Constitution is a living document open to interpretation. And even though by "useful arts" they meant technology, I guess it would be politically necessary to fudge that include artistic works. It's not what they meant, and it's a HUGE fudge, but let's allow that for this discussion.
But do we have to COMPLETELY ignore its intent? Can we apply SOME of what the founders clearly intended? Can we at least pretend the Constitution of the United States mean SOMETHING?
If we did, the courts would apply this simple rule: "Does this use of the law of copyright materially promote science or technology (or, at least, artistic endeavor)? If not, it is unconstitutional."
Of course, anyone can CLAIM that that it will.
Disney can SAY that if they don't get their 75-year extension (or whatever it is) on Snow White etc., well, they just won't make any more movies. Not worth it anymore if they can't count on reaping the income from Flight Of The Navigator through 2093. You know, their investors, well they just count on that 75-year recoup cycle.
They can say that, but of course they're lying. No judge that was applying the actual constitutional standard would put up with that.
Any rock band can SAY that they'll stop recording if anyone can copy their recording. Sure, that will put a huge dent or outright kill their income from live shows, but hey. Always dreamed of working at a car wash anyway. Or maybe landscaping. Or McDonald's, man they have cool uniforms AND great benefits.
Hey I have musical favorites. I'm sorry if they would feel that the Constitution treats them unfairly. But sorry enough to give up a Constitutiona right. I mean where does it end? Can Aerosmith demand to take my house, too? Why not? They're big stars and all, and well they just DESERVE it don't they, for being so artistic and all, right? And what's an old house anyway, compared to a natural human right explicitly protected by the Constitution? You gave that up, didn't you? So what are you whining about now?
Whatever. It's over, anyway. Business rules, nobody a damn about the Constitution or the founding fathers. Bah.
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[The Congress shall have Power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
I don't think that, except for the famous opening phrase of the Second Amendment (and of course the preamble), there is anywhere else in the Constitution where the founders felt the need to explain WHY they were promulgating a law or delegating a power.
It's pretty unusual for a law (except perhaps in its preamble) to EXPLAIN itself. Laws are pretty dry -- they typically state a proscribed behavior and the penalty for it. They don't say "Becase such-and-such is harmful to the public blah blah blah".
For instance, the First Amendment doesn't do this. It doesn't say WHY the press must be free. The founders perhaps thought it obvious, but perhaps rather they would have found the wording of an explantion too difficult and controversial -- should an reason-for clause have spoken just of political speech, or explicity covered commercial speech, or just all speech, or with an exception for profanity etc.? At any rate, they left it for later generations to interpret.
They didn't do that with the copyright/patent clause. They SPECIFICALLY extended to Congress this power ONLY to "promote science and useful arts". By useful arts, they meant craft, engineering -- today we would probably use the phrase "science and technology". Same thing.
I THINK that they had a REASON for that.
That's the thing about the Constitution, you know. The words in it MEAN something, and they were put there for a REASON. And the first part of Article 1, Section 8, Clause 8, is pretty straightforward.
If the clause read "to promote science and useful arts, and for any other reason as Congress shall determine...", that would be different But of course, that would have made the phrase meaningless. I think that we have to assume that It DOES have meaning, and that it means what it says.
It's clear to me that the purpose of the explanation is to restrict Congress's copyright/patent powers over the people to a narrow area. Semantically, the meaning of the phrase is basically "to promote science and useful arts, and for no other purpose..." Now it doesn't say that, and that perhaps would have been too strong for the founders. But that's the gist of what they were saying.
The Constitution does NOT say "To promote the Stability of Business...". It does not say "To Reward Those who have Striven to create Works of Beauty...". It does not say "To Protect Those who have Organiz'd such Associations as may Represent Men who are as Moguls in the Distribution of Artistical Treasures". It does not say "So that Outrageously-Tress'd Youths may Prance upon Stage whilst Garb'd in Tight Tunics which Mimic the Hide of the Leopard and produce All Manner of Disagreeable Cacaphony whilst Disrespecting their Elders and Recieving the Fair Regard of Maidens, and Yet be Rewarded for their Efforts by a Sume of Monies which shall be Sufficient to Obtain all of the Noisome Ingestants in Newe England, with Sufficient Remaining to Purchase a newe Fast Coach for each remaining Day of their Lives..."
No, it just says what it says.
Now, of course the Constitution is a living document open to interpretation. And even though by "useful arts" they meant technology, I guess it would be politically necessary to fudge that include artistic works. It's not what they meant, and it's a HUGE fudge, but let's allow that for this discussion.
But do we have to COMPLETELY ignore its intent? Can we apply SOME of what the founders clearly intended? Can we at least pretend the Constitution of the United States mean SOMETHING?
If we did, the courts would apply this simple rule: "Does this use of the law of copyright materially promote science or technology (or, at least, artistic endeavor)? If not, it is unconstitutional."
Of course, anyone can CLAIM that that it will.
Disney can SAY that if they don't get their 75-year extension (or whatever it is) on Snow White etc., well, they just won't make any more movies. Not worth it anymore if they can't count on reaping the income from Flight Of The Navigator through 2093. You know, their investors, well they just count on that 75-year recoup cycle.
They can say that, but of course they're lying. No judge that was applying the actual constitutional standard would put up with that.
Any rock band can SAY that they'll stop recording if anyone can copy their recording. Sure, that will put a huge dent or outright kill their income from live shows, but hey. Always dreamed of working at a car wash anyway. Or maybe landscaping. Or McDonald's, man they have cool uniforms AND great benefits.
Hey I have musical favorites. I'm sorry if they would feel that the Constitution treats them unfairly. But sorry enough to give up a Constitutiona right. I mean where does it end? Can Aerosmith demand to take my house, too? Why not? They're big stars and all, and well they just DESERVE it don't they, for being so artistic and all, right? And what's an old house anyway, compared to a natural human right explicitly protected by the Constitution? You gave that up, didn't you? So what are you whining about now?
Whatever. It's over, anyway. Business rules, nobody a damn about the Constitution or the founding fathers. Bah.