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The Copyright Clause That Never Was · Monday May 21, 2012 by Crosbie Fitch

The following blog article is a work in progress and liable to be edited/improved – feel free to comment if you have suggestions. Its point is to show how the allure of the old world’s copyright and patent seduced and corrupted James Madison, and in turn led him to attempt to corrupt the Constitution to permit those privileges to be granted in the US, that he/Congress granted anyway. Fortunately, a strict natural rights reading of the Constitution (as most of the Framers would have read it) reveals that it did not empower Congress to grant copyright or patent.

The Declaration of Independence

The Declaration of Independence of the Thirteen Colonies
In CONGRESS, July 4, 1776

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.1 — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

1 Per Wikipedia This has been called “one of the best-known sentences in the English language”, containing “the most potent and consequential words in American history.” The passage came to represent a moral standard to which the United States should strive. This view was notably promoted by Abraham Lincoln, who considered the Declaration to be the foundation of his political philosophy, and argued that the Declaration is a statement of principles through which the United States Constitution should be interpreted.

The US Constitution, 1787

Article 1 – The Legislative Branch

Section 8 – Powers of Congress

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;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

The US Copyright Act, 1790

Copyright Act of 1790

1 Statutes At Large, 124

An Act for the encouragement of learning, by securing the copies of maps, Charts, And books, to the authors and proprietors of such copies, during the times therein mentioned.

Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That from and after the passing of this act, the author and authors of any map, chart, book or books already printed within these United States, being a citizen or citizens thereof, or resident within the same, his or their executors, administrators or assigns, who halt or have not transferred to any other person the copyright of such map, chart, book or books, share or shares thereof; and any other person or persons, being a citizen or citizens of these United States, or residents therein, his or their executors, administrators or assigns, who halt or have purchased or legally acquired the copyright of any such map, chart, book or books, in order to print, reprint, publish or vend the same, shall have the sole right and liberty of printing, reprinting, publishing and vending such map, chart, book or books, for the term of fourteen years from the recording the title thereof in the clerk’s office, as is herein after directed: And that the author and authors of any map, chart, book or books already made and composed, and not printed or published, or that shall hereafter be made and composed, being a citizen or citizens of these United States, or resident therein, and his or their executors, administrators or assigns, shall have the sole right and liberty of printing, reprinting, publishing and vending such map, chart, book or books, for the like term of fourteen years from the time of recording the title thereof in the clerk’s office as aforesaid.

“securing the copies … to the authors and proprietors” ? Hang on. Congress only has power to secure rights, rights that people are born with – not to ‘secure copies’ such as the copy of a newspaper against other printers printing further copies of it.

“shall have the sole right and liberty” ? This ‘shall’ is not the recognition of a natural right, but the granting of a privilege, especially as only the holder shall have it instead of ‘all men’. And ‘sole liberty’ provides evidence that this aforesaid unalienable right of Liberty is being alienated from the majority to be left, by exclusion, in the hands of a few.

Isn’t that what Thomas Paine would say? Try his Rights of Man

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. If charters were constructed so as to express in direct terms, “that every inhabitant, who is not a member of a corporation, shall not exercise the right of voting,” such charters would, in the face, be charters not of rights, but of exclusion. The effect is the same under the form they now stand; and the only persons on whom they operate are the persons whom they exclude. Those whose rights are guaranteed, by not being taken away, exercise no other rights than as members of the community they are entitled to without a charter; and, therefore, all charters have no other than an indirect negative operation. They do not give rights to A, but they make a difference in favour of A by taking away the right of B, and consequently are instruments of injustice.

What eludes many people is that the so called Progress Clause of the Constitution neither grants copyright nor empowers Congress to grant copyright. Madison inserted the clause with copyright in mind – and also felt obliged to prefix it with a glib pretext “to promote the progress…” – but he was unable to explicitly empower Congress to grant that monopoly (though could be explicit when it came to granting “Letters of Marque” further on). He was unable to grant copyright because the grant of a monopoly was anathema2 – the most he could do was to empower Congress to secure an author’s exclusive right to their writings. And this was in the hope people wouldn’t notice his/Congress’s later assumption of power to grant the monopoly of copyright – derogating from the citizens’ liberty instead of securing their privacy (their natural and unalienable right to exclude others from their private writings).

Congress has power to SECURE the author’s inalienable, natural, exclusive right to their writings, i.e. to protect their natural right (equal power) to exclude others from their writings. NB We have no natural power to give someone our writings (include them) and then exclude them – as copyright holders are gradually realising today, even with draconian enforcement powers. Congress can only secure the right to exclude others from our writings that we already have (that we were imbued with by our creator/nature).

Congress does not have power to annul its citizens’ natural right to copy, to abridge their liberty to share and build upon their own culture. The Constitution did not stipulate that Congress had the power to grant the privilege of copyright – unlike its stipulation that Congress had the power to grant Letters of Marque.

So, Congress should and can abolish the privilege it had granted without Constitutional power, i.e. the US Copyright act of 1790 and all enhancements thereafter.


2 See Unequal Protection: Jefferson Versus the Corporate Aristocracy

Jefferson and Natural Rights

Back in the earliest days of the United States, Jefferson didn’t anticipate the scope, meaning, and consequences of the Industrial Revolution that was just starting to gather steam in Europe about the time he was entering politics in the Virginia House of Burgesses. He distrusted letting companies have too much power, but he was focusing on the concept of “natural rights,” an idea that was at the core of the writings and the speeches of most of the Revolutionary-era generation, from Thomas Paine to Patrick Henry to Benjamin Franklin.

In Jefferson’s mind “the natural rights of man” were enjoyed by Jefferson’s ancient tribal ancestors of Europe, were lived out during Jefferson’s life by some of the tribal peoples of North America, and were written about most explicitly sixty years before Jefferson’s birth by John Locke, whose writings were widely known and often referenced in pre-revolutionary America.

Natural rights, Locke said, are things that people are born with simply by virtue of their being human and born into the world. In 1690, in his Second Treatise of Government, Locke put forth one of the most well-known definitions of the natural rights that all people are heirs to by virtue of their common humanity. He wrote, “All men by nature are equal…in that equal right that every man hath to his natural freedom, without being subjected to the will or authority of any other man…being all equal and independent, no one ought to harm another in his life, health, liberty or possessions…”

As to the role of government, Locke wrote, “Men being…by nature all free, equal and independent, no one can be put out of his estate and subjected to the political power of another without his own consent which is done by agreeing with other men, to join and unite into a community for their comfortable, safe, and peaceable living…in a secure enjoyment of their properties…”

This natural right was asserted by Jefferson first in his Summary View of the Rights of British America, published in 1774, in which he wrote, “The God who gave us life gave us liberty at the same time; the hand of force may destroy, but cannot disjoin them.” His first draft of the Declaration of Independence similarly declared, “We hold these truths to be sacred and undeniable; that all Men are created equal and independent, that from that equal creation they derive rights inherent and unalienable, among which are the preservation of life, and liberty, and the pursuit of happiness.”

Individuals asserted those natural rights in the form of a representative government that they controlled, and that same government also protected their natural rights from all the forces that in previous lands had dominated, enslaved, and taken advantage of them.

Aaeru said 3140 days ago :

It is a miracle your blog hasn’t been censored into oblivion! I would have expected a delisting from google at the very LEAST.

You are very dangerous to the establishment because you write with amazing clarity on the topic of copyright, which is probably the one area they have had the most success against the people, and hence the most control on people. They surely would not like to give that power up anytime soon.

ty for your work. There is a lot of entries. A Flattr button would be most appropriate

Crosbie Fitch said 3140 days ago :

Thanks for the encouraging words Aaeru.

There’s no point in censoring this site because copyright is so boring. The moment it was censored it would suddenly become extremely interesting.

By the time most people are able to recognise the truth in what I write, they have long realised there’s something rotten in the state of Denmark.




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