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Mythologising Copyright · Monday August 11, 2008 by Crosbie Fitch

If the instantaneous diffusion of the Internet reveals copyright as an anachronism, it also helps manifest multifarious creation myths.

Many understand that copyright is a monopoly, and many recognise that the Framers of the US Constitution expressly abhorred monopolies and sought to prevent them. So, it’s quite odd when some even suggest that the Framers specifically wished to sanction monopolies in the Constitution:

Mike Masnick in a recent article of his on copyright comments that “To the framers it was a monopoly right granted for the purpose of incentivizing more content.”

To the Framers there was no copyright. There were no rights to be granted (rights can only be recognised, not granted), and certainly no monopolies to be granted, privileges that would interfere with the recognition that all men are created equal.

The Constitution of 1787 could not recognise copyright, because it was not about recognising reproduction privileges that may have already been legislated in Europe (1709), but about recognising citizens’ natural rights and what power should be granted to the state in protecting these.

The Framers recognised the natural, exclusive rights of authors and inventors, and considered that the state should have the power to secure these rights for limited times, e.g. the lifetime of the author/inventor.

The Framers couldn’t possibly recognise a privilege of copyright since such a statute would have to arrive after the Constitution – it couldn’t occur before it. The Constitution can only recognise what precedes it, i.e. natural rights. It cannot paradoxically recognise the legislation that was based upon itself or that later claimed its sanction. So, the Constitution of 1787 could not recognise the US Copyright enacted in 1790.

Copyright claims constitutional sanction, because copyright clearly helps secure exclusive rights. Unfortunately, copyright does more than this by granting an exclusive reproduction privilege to published works, i.e. a monopoly over reproduction. Published works lie outside of an author’s exclusive right, so any extension is an unsanctioned privilege (for however long a term it is granted). The Framers specifically expressed their abhorrence of monopolies, so copyright clearly exceeds constitutional remit. It is also worth noting that ‘limited times’ applies to the duration for which authors’ exclusive rights are protected, not the duration of any transferable monopolies granted over them (invariably enjoyed by publishing corporations).

So, whilst some of the Framers may have lived to see the first copyright law become enacted (not that any of them were involved in its draughting), it is not copyright that the Constitution sanctioned, but the securing of exclusive rights. The US Copyright of 1790 was heavily influenced by the 1709 Statute of Anne (which also didn’t recognise a reproduction monopoly as a natural right – hence the need to legislate such a privilege).

So, three years after the Framers agreed that monopolies were to be deprecated, good old George Washington rubber stamps copyright – the most egregious monopoly ever invented.

All that had to be done to exceed the power granted by the Constitution was to re-interpret ‘exclusive right’ to include control over works even after those works had clearly been released by their author from his natural, self-evident right, to exclusively control. Magnifying this excess was to name this privilege as if a right, ‘copyright’, and to make it transferable, and thus inevitably conveying monopolies back to the very publishers already recognised as the worst abusers of such.

So, please, let’s not conflate the Framers and their Constitution to protect citizens’ rights, with the legislators of copyright three years later and their desire to reward publishers with transferable monopolies (via initial attachment to original works – that co-incidentally also protected authors’ exclusive rights).

What? said 4458 days ago :

Your logic is seriously flawed and makes assumptions about the intents of the framers that history, letters, etc. don’t support. And most certainly the framers were thinking about monopolies, secured for a limited time, when they drafted that clause. To claim otherwise is to fly in the face of all documentation and letters to the contrary and to deny that the language of the constitution means what it says. I’ve seen similar twisted reasoning in fundamentalists religions that use sacred texts to justify whatever they feel like believing.

Crosbie Fitch said 4458 days ago :

It is clear that those who would enjoy and support the monopolies that were granted a mere three years after the Constitution, as well as their descendant publishing cartels over two centuries later, could only be eager to establish the ‘intended’ interpretation of the ‘power to secure authors’ exclusive rights’ as the ‘power to grant monopolies to publishers’.

I don’t doubt that a more correct understanding of what was meant by ‘exclusive rights’ (by those who knew that rights were invested in man by nature rather than granted by governments) is not going to go down at all well with those monopolists who’d like it believed they have constitutional sanction, rather than a mere statutory privilege granted a few years later.

It is of course academic. Nothing I say is going to affect the course of copyright. Reality is revealing copyright to be both unnatural and unviable. I’m simply observing that those natural rights philosophers who had a hand in draughting the Constitution understood the difference between (natural) exclusive rights and (unnatural) monopolies. Hence why such terms and phrases as ‘copyright’, ‘monopoly’, ‘patent’, and ‘may grant to authors’ are meticulously absent.

Those who draughted the US Copyright legislation a few year’s later however, taking liberty from a constitution now at arm’s length, felt then emboldened to create a reproduction monopoly over published works, call it an exclusive right, and then being a ‘right’ briefly held by the author (before they supernaturally transferred it to a publisher), fraudulently demonstrate this monopoly was a constitutionally sanctioned exclusive right of the author.

So, you can’t have it both ways. Either:
A) it is only recently that we’ve realised that copyright is a monopoly, and the poor Framers and copyright legislators committed a grievous error in thinking it was a natural right,
B) it has always been known that copyright (as granted by Statute of Anne) is a monopoly and the Framers were meticulous in restricting the Constitution to the protection of natural rights and the rigorous exclusion of anything from it that might be interpreted to permit the granting of unnatural monopolies.

If we’re weighing letters and documentation, I think you’ll find a wealth of it that expounds the ills of monopolies, especially when enjoyed by printers. The malaise of monopoly was painfully clear to all at the end of the 18th century – on both sides of the Atlantic. Unfortunately, monopolies are so lucrative to those who enjoy them, one can but marvel at the ingenuity and cunning of those who would manoeuvre them back into the legislation – and today maintain and extend them there.

Willton said 4455 days ago :

The reason the words “patent,” “copyright,” and “monopoly” were not used was because the language of Art. I Section 8 Clause 8 is much broader than those narrowly-defined words, and thus encompases the concept of patent and copyright. The Constitution is designed to be read broadly, not narrowly.

Plus, to say that the Framers were thinking one thing when drafting the Constitution and then thinking another when drafting the Copyright and Patent Acts is illogical. It makes perfect sense that the Framers of the Constitution would then draft legislation consistent with the meaning of the Constitution 3 years later. The language of the Acts is supported by the language of the Constitution. You have no evidence that says otherwise: all you have is your ill-conceived notions on how the world should be.

Crosbie, you’re a lunatic. You have no Constitutional authority to back such an absurd opinion. You interpret the Constitution to mean whatever you think it means, not what the Framers intended it to mean. Follow the plain language of the Constitution; don’t make up meanings for words and phrases that don’t have any legal or normative support.

Crosbie Fitch said 4454 days ago :

It seems that we are getting to the stage where we should simply agree to disagree.

You stand by the received understanding of the last two centuries, by the majority of sane authorities, that the Framers intended ‘power to secure an author’s exclusive rights’ to mean “power to secure an author’s exclusive rights, and to grant them reproduction monopolies or other mercantile privileges that may subsequently be termed ‘exclusive rights’” or alternatively to mean “power to secure an author’s exclusive rights, where ‘exclusive rights’ encompasses their natural exclusive rights as well as any reproduction monopolies or other mercantile privileges that may later be granted to them”.

I on the other hand, argue logically, rationally and coherently that ‘power to secure exclusive rights’ means “power to secure exclusive rights, where ‘exclusive rights’ needs no further explanation because it describes an author’s self-evident and natural exclusive rights to their writings” and is thus not a warrant for the state to grant reproduction monopolies and other mercantile privileges to persuade authors to release their writings from the protection of their exclusive rights (making them public). Though such a warrant was evidently assumed when a grant of a reproduction monopoly over published works (aka copyright) was enacted a mere three years later.

I invite you to post your logical, rational and coherent counter argument to mine on your own blog – arguing why copyright is constitutionally sanctioned.

I recognise that to many people it would appear insane to question constitutional sanction for copyright, but fortunately, neither insanity nor lunacy actually impinges upon the validity of such an argument.

As to authority, this also has no bearing upon an argument’s validity, but only really whether one could expect to be taken seriously. This is why I’m just blogging about this rather than presenting an academic paper at a conference.

Whilst I might hope to persuade you of my sanity, I am clearly unable to do much about my authority. Neither I nor anyone else today is a contemporary of the Framers, but in case it helps, I did live for many years in the same town as Thomas Paine and drank in the same pub as him. You know Thomas Paine? That influential chap who was a contemporary and well known to the Framers, who wrote The Rights of Man? No doubt the obvious interpretation of such a title should lead one to conclude that he wrote about the reproduction monopolies and other mercantile privileges that governments should have the power to grant to men such as him.

Paine emphasizes that rights cannot be granted by any charter because this would legally imply they can also be revoked and under such circumstances they would be reduced to privileges.

Paine writes, “It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect – that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few. … They…consequently are instruments of injustice. ”

Willton said 4451 days ago :

Last I checked, Thomas Paine did not have a hand in writing the Constitution.

Crosbie Fitch said 4451 days ago :

Nevertheless, Thomas Paine was one of The Founding Fathers of the US Constitution who was, as I indicated, a highly influential contemporary of others such as Benjamin Franklin, Thomas Jefferson and James Madison – and other Framers.

Paine had a hand in writing the constitution even if his hand did not literally grasp the pen.

See Wikipedia on Jefferson: Jefferson believed that each individual has “certain inalienable rights.” That is, these rights exist with or without government; man cannot create, take, or give them away. It is the right of “liberty” on which Jefferson is most notable for expounding. He defines it by saying “rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law,’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.”34 Hence, for Jefferson, though government cannot create a right to liberty, it can indeed violate it. And the limit of an individual’s rightful liberty is not what law says it is but is simply a matter of stopping short of prohibiting other individuals from having the same liberty. A proper government, for Jefferson, is one that not only prohibits individuals in society from infringing on the liberty of other individuals, but also restrains itself from diminishing individual liberty.

The Framers had a clear understanding of the difference between exclusive rights inalienable to individuals and mercantile privileges of monopoly (over reproduction, utilisation, performance, or anything else) that could be granted as compensation, rewards, or favours (and would be).

Crosbie Fitch said 4451 days ago :

From the Thomas Paine National Historical Association

The Philosophy of Paine
by Thomas A. Edison

June 7, 1925

Tom Paine has almost no influence on present-day thinking in the United States because he is unknown to the average citizen. Perhaps I might say right here that this is a national loss and a deplorable lack of understanding concerning the man who first proposed and first wrote those impressive words, ‘the United States of America.’ But it is hardly strange. Paine’s teachings have been debarred from schools everywhere and his views of life misrepresented until his memory is hidden in shadows, or he is looked upon as of unsound mind.

We never had a sounder intelligence in this Republic. He was the equal of Washington in making American liberty possible. Where Washington performed Paine devised and wrote. The deeds of one in the Weld were matched by the deeds of the other with his pen. Washington himself appreciated Paine at his true worth. Franklin knew him for a great patriot and clear thinker. He was a friend and confidant of Jefferson, and the two must often have debated the academic and practical phases of liberty.

I consider Paine our greatest political thinker. As we have not advanced, and perhaps never shall advance, beyond the Declaration and Constitution, so Paine has had no successors who extended his principles. Although the present generation knows little of Paine’s writings, and although he has almost no influence upon contemporary thought, Americans of the future will justly appraise his work. I am certain of it. Truth is governed by natural laws and cannot be denied. Paine spoke truth with a peculiarly clear and forceful ring. Therefore time must balance the scales. The Declaration and the Constitution expressed in form Paine’s theory of political rights. He worked in Philadelphia at the time that the first document was written, and occupied a position of intimate contact with the nation’s leaders when they framed the Constitution.

Certainly we may believe that Washington had a considerable voice in the Constitution. We know that Jefferson had much to do with the document. Franklin also had a hand and probably was responsible in even larger measure for the Declaration. But all of these men had communed with Paine. Their views were intimately understood and closely correlated. There is no doubt whatever that the two great documents of American liberty reflect the philosophy of Paine.





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