Copyright As Presently Defined Is Unconstitutional

Saturday, 2009-August-01 at 07:46 1 comment

Movie/record industry rep says that you shouldn’t expect to be able to play your media for as long as you own it – Boing Boing

“We reject the view,” he writes in a letter to the top legal advisor at the Copyright Office, “that copyright owners and their licensees are required to provide consumers with perpetual access to creative works. No other product or service providers are held to such lofty standards. No one expects computers or other electronics devices to work properly in perpetuity, and there is no reason that any particular mode of distributing copyrighted works should be required to do so.”

The context is a discussion over whether it should be legal for users to strip off TUR (technological usage restrictions), also known as DRM, when the validation servers for their legally-purchased content (that is, music, video, and software) are shut down. Should Windows XP stop working when Microsoft shuts down its Genuine Disadvantage servers? Should people who bought “protected” music lose when Wal-Mart or Microsoft or Apple decide to shut down their authorization servers?

But the real issue is whether “intellectual property” as we currently know it is even allowed under our Constitution.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

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;
….
(US Constitution, Article I, Section 8)

A simple reading of the Constitution (and the only reading that makes sense) tells us a few things about patents and copyrights. First of all, the purpose is to promote progress, to benefit society as a whole. In order to do so, a monopoly may be granted for a limited period of time, to authors and inventors, creators. Wikipedia has some background on the subject.

Now, nothing is created, except through the efforts of individual humans or groups of individual humans. Corporations have no creative ability, save their ability to help fund and organize the efforts of humans. Therefore, I will make my first shocking statement: the provision of copyright and patent benefits to any entity other than the specific individuals involved in creating the thing protected is a clear violation of the US Constitution and ought to be legally prohibited. Corporations, by the Constitution, have no authority to own or acquire copyrights or patents for themselves, and Congress cannot grant that authority.

Secondly, the specific purpose of copyright and patents is to motivate creators to continue creating things for the benefit of society as a whole. Therefore, there are no grounds in the Constitution for copyright or patent to last longer than the life (or lives) of the specific individuals involved in creation of said invention or artistic work. To be more direct, the lifetime (s) of the creators is the limit of the time that Congress (and by extension the government as a whole) is allowed to grant these monopoly rights. The day you die, you can no longer write music, nor invent new things. Thus, it is clearly impossible for copyright or patent to motivate you to continue creating things after that date.

Now, we must understand that copyright and patents do not exist to enrich media and technology companies, but only to benefit society as a whole. The RIAA, the MPAA, and the BSA consist mostly of large and rich corporations. They are large and rich, I surmise, because misinterpretation of a simple clause of the Constitution into a near-perpetual right to compensation has enabled corporations and “stars” to get very high returns for their efforts. The bad thing about those ultra-high returns is the belief that they are entitled to them, which was the reason behind technological usage restrictions in the first place.

In the days of vinyl records, for example, it was relatively difficult to copy and illegally distribute albums. To be sure, it went on, but it wasn’t some high school kid sharing free music with strangers. This made it easy for record companies to control music distribution. Because they controlled distribution, they then had an important service to offer artists. But now? They still control the courts, for now. What happens in ten years when the current under-30 group starts joining the judicial bench? They’ve grown up in an era where music “sharing” is easy and painless, because it doesn’t affect your ability to use the product. They’ve seen online services where music is rented. They know that the current “intellectual property” regime is a scam.

IMPORTANT: I am not a lawyer and this is not legal advice. If you get crossways with the music, movie, or software companies, you are on your own. Your best bet is to obey the law as currently interpreted, while working to bring the law back to its Constitutional basis.

Hat tip: Jim Robertson

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UPDATE: 2012-01-22: Another article about similar subject matter, this one sparked by something that Joel Spolsky wrote.

Entry filed under: Intellectual Property, TUR-DRM. Tags: .

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1 Comment

  • 1. Courts, Patents, XML, and Microsoft « Opportunity Knocks  |  Thursday, 2009-August-27 at 02:29

    [...] again been burned by the application of the patent system to the field of software. I maintain that the present patent and copyright system violates the Constitution, but even those who support the present system have problems with the way it was applied in this [...]


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