Comment Re:The law is clear (Score 1) 28
There is more nuance than the parent has allowed. The constitution balances individual rights with the public good through the creation, preservation, and release of information. I am a lawyer but not a copyright lawyer (IAALBNACL). I have a strong background in Constitutional, Treaty law, and civil rights law. I am also a CMSC. I have long had a growing suspicion that intellectual property law is due for a shake up based on the plain meaning and original intent of the US Constitution.
All US copyright law is passed pursuant to the copyright clause of Article 1, Section 8, Clause 8 of the US Constitution, which provides: "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;" ArtI. S8. C8.
As a simple proposition, the US Constitution does not textually support statutory or decisional law that provides for infinite copyright protection (think encryption) or the loss of creative content (think anti-preservation). The clause is clearly aimed at preservation of knowledge: it says it in the text!
Further, Congress is only empowered to provide protections to creators "for a limited time". The history of Article 1, Section 8, Clause 8 does not support law providing for infinite protection and non-preservation either. Madison was clearly focused on preserving and sharing information with humanity by encouraging the production and, eventual, freeing of information. The English 1623 Statute of Monopolies limited protections to 14 years. At the August 18, 1787 drafting session, Madison proposed a provision “to encourage, by proper premiums & Provisions, the advancement of useful knowledge and discoveries.” Article 1, Section 8, Clause 8 resulted. In Federalist 43, Madison reasoned that: "The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals." In other words, the public good is served by the creation and release of ideas, balanced with compensation to the creators.
Franklin was not a proponent of the protections and Jefferson disliked the monopoly of ideas. More could be written about the views of the Framer's (anti-monopoly views and the history of the Statute of Monopolies could be instructive as to why the Framers would constrain Congress' ability to provide for intellectual monopoly with the "for a limited time" limitation) but the essence is balance between natural rights concept of ownership of the fruits of labor and preservation and release of information. That balance was struck from the very beginning by limiting the time of IP rights and allowing for preservation of information (think libraries).
I believe there has been an ideological shift in American law that opens arguments of textualism and original intent. Consider the current composition of the USSCT: Thomas (originalist), Alito (originalist), Barett (originalist), Gorsuch (textualist), Kavanaugh (maybe textualist), the rest (make it up as you go along). The court has shown itself willing to re-examine whole lines of entrenched precedent based on principled approaches of interpretation, think Roe. Also, Gorsuch's re-examination of Indian law in McGrit v. Oklahoma is fascinating.
Copyright law has gone off the rails of the text and intent and is due for a reset.
