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Constitutional Sanction · Friday May 16, 2008 by Crosbie Fitch

Article 1, Section 8, clause 81 of the US Constitution says,
“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.”

Believe it or not, but this doesn’t actually sanction copyright or patent. However, those who enact and support copyright and patent may argue that it permits such unethical privileges.

But, more importantly, the US constitution doesn’t prevent the abolition of copyright or patent.

Let’s see how, whilst still tightly adhering to the US constitution, the people’s liberty need not be unethically suspended, as it is by copyright and patent, when securing their natural intellectual property rights:

  1. Authors and inventors, being human beings have a natural, exclusive right to their respective Writings and Discoveries.
  2. This natural right should be secured by the state – to promote the Progress of Science and useful Arts.
  3. The natural right can last no longer than the lifetime of the author or inventor.
  4. The natural right should be secured for a limited time equal to the limited lifetime of the author or inventor, except in the event of unnatural death, when this limited time should be extended to secure a now unnatural exclusive right by a further quarter of the normal lifespan.
  5. The natural right ceases to be exclusive when the author or inventor voluntarily communicates (or permits the communication of) their writings and discoveries to other parties, whether by gift or exchange.
  6. An author’s or inventor’s writings and discoveries naturally remain exclusive to all natural parties to whom they have been voluntarily communicated (by any such party).
  7. All such communicated parties may, as a collective, be treated as if a single author or inventor and should have secured (by the state) their natural, exclusive right for as long as they each shall live.
  8. No communicated party may as a consequence submit to the abridgement of their freedom of speech, which includes the freedom to further communicate (the writings and discoveries voluntarily communicated to them) to whomsoever they choose. NB This doesn’t preclude a communicant’s commercial exchange of their continued silence (confidentiality).
  9. Those who are not voluntarily communicated parties, who view, remove, copy, or otherwise communicate a party’s writings or discoveries to themselves (or any other) without that party’s permission shall be penalised statutorily (for the violation of privacy) and additionally in proportion to the market value of the publication of those writings or discoveries (where publication is their exchange for money with members of the public at large), and further required to restore any removal and destroy any copies manufactured. All who have been further illegitimately communicated may also be similarly liable in so far as they are complicit, but must at least also cease and reverse any communication in so far as it is practicable.

This would seem to be in greater accord with the natural rights philosophy of Thomas Paine than the current copyright and patent legislation (that unethically suspends the public’s liberty in order to create mercantile privilege, so subjecting the people to the tyranny and oppression of immortal and sociopathic corporations who’ve adopted the privilege as their own).


1 Thanks to Grndexter who brought this clause to my attention on Techdirt

KD said 3681 days ago :

Seems to me you are making this harder than necessary.

The Constitution just gives Congress the power to make laws in the areas listed. It does not require Congress to do so. If Congress determines that the current laws are not promoting the progress of science and useful arts, Congress can change or repeal them.

There seems to be quite a bit of evidence that patents and copyrights are not promoting progress in those areas, so such changes probably would be a good thing. Of course, those who are benefiting from the current system would lobby against weakening or abolishing it, but if they are trying to build their argument on it being unconstitutional to weaken or abolish the current system, it ought to be easy to shoot down those arguments. (No doubt they have many other arguments for keeping the current systems, so shooting down just this one, if they are actually using it, doesn’t help much.)

Crosbie Fitch said 3681 days ago :

Thanks KD. I don’t think I’m making things harder, just making another tiny cut out of thousands – even if it is one of the more obscure ones that could be made.

I’ll leave the making of more easily understood arguments to those more capable than me.

It doesn’t seem to me that there’s much of a surfeit of help available in enlightening people as to the ills of commercial privilege.

So, it’s good to hear from you. :)

Jason said 3670 days ago :

Forgive me if I’m asking questions you’ve answered elsewhere. I’m just trying to clearly understand your position.

I think you’re saying:
1) The “tyranny and oppression of immortal and sociopathic corporations” is the direct result of current copyright law.

This I agree with completely.

But I think you’re also saying:
2) Any form of copyright law is unethical, regardless of its terms, and
3) It is unethical for creators to seek to have any monopoly/control of any sort over their creations.

Please correct any misunderstandings I have so far, if you would, or point me to places where you’ve already done so.


Crosbie Fitch said 3670 days ago :

Happy to oblige, Jason.

Corporations are immortal and sociopathic because they are not human beings, and so rather than being programmed to further the survival of the human race (and its habitat) and integrate into society, are instead programmed to maximise profit (typically in the short term at the expense of the long term) by exploiting society and its resources.

See Corporation as Psychopath
by Russell Mokhiber and Robert Weissman.

Corporations aren’t necessarily a problem, in the same sense that semi-autonomous weapons aren’t necessarily a problem. However corporations should never have been elevated to anywhere near the same status as citizens or human beings. They do not have any rights (save those contributed by their human constituent, such as collective privacy).

Given they also have different natures, they should not be permitted to contract with humans – see ACACIA.

So, copyright merely empowers corporations, it doesn’t make them sociopathic.

Any form of copyright applying to published works is unethical. Copyright applying to private works is the natural law and so quite ethical. One of the key arguments proposed in copyright’s favour is that nature must have erred in failing to extend an author’s natural, exclusive right to their unpublished writings beyond the simple act of their publication. Hence copyright steps in to ‘save the day’. It’s of course plain to see that nature only enables protection of one’s private domain, for outside it lies the domain of the public’s liberty. Supposedly to be protected by the state, not controlled to be commercially exploited.

It’s quite natural for people to seek control and monopolies (at the expense of others’ liberty), but that’s why we have a government – to regulate egalitarian fair play and the equal protection of everyone’s natural rights. It would be unethical if the government granted such controls or monopolies (unless perhaps this was essential to protect the lives of its citizens).

Dean Marlettsmith said 3661 days ago :

“1. Authors and inventors, being human beings have a natural, exclusive right to their respective Writings and Discoveries.” Is there a legal presumption that authors and inventors may not necessary be human beings? Number 8 should be removed; the federal government should secure liberty from itself against its citizens. Number 9 is plainly a lawyers’ full-employment bill!

I have created an edition of the Constitution where the amendments are included within the seven articles. U.S. Constitution 2.27 (ftp://marlettsmith.com/usconstitution2-27.pdf). I made this version because I believe too many of our fellow citizens think amendments have a life outside of the original seven articles. Incorporation doctrine is a strange walk through the dark regions of constitutional law in order to create law. I await to add numbers 1 to 7 to my pdf.

Crosbie Fitch said 3661 days ago :

Thanks Dean, it’s good to have the benefit of your constitutionally experienced eye.

In answer to you question, corporations are not human, and have no natural rights. I felt it was necessary to emphasise where natural rights come from – it is not self-evident these days.

I take it that you consider my points 8 and 9 are redundant, as opposed to disagreeable or unworkable? I’d be interested in further explanation of your reasoning.

It is promising that you do not raise objection to points 1 to 7.




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