Derek Bambauer suggests the cartel’s attempt to frame copyright as ‘a natural right to be secured’ is greenwashing. I suggest it is because they’ve recognised I have a point – the US Constitution did not empower the granting of a privilege. See my argument with Karl
The US Constitution empowers Congress to SECURE the author’s (“solemnly adjudged to be a common law”) right to exclude others from their writings for limited times.
In 1787, in the New World and Old, most of those in the publishing industry were kidding themselves that a reproduction monopoly was a natural right and that the Statute of Anne (and various states’ legislative imitations) was a paltry legal recognition thereof. This is why James Madison (despite Jefferson’s suggestion to explicitly empower the granting of monopolies) knew he only needed to empower Congress to secure a right, in order to grant the monopoly of copyright.
By legislating the first US copyright act (Statute of Anne with minor edits) in 1790, most of those interested would accept this as the securing of a natural right (despite the fact that Madison & Jefferson knew damn well that copyright was the granting of a monopoly, not the securing of a right) – “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”.
Madison (who wanted copyright enacted) knew that a clause empowering Congress to grant monopolies would not have been ratified, hence his insertion of a clause that ‘secured a right’ – a pre-existing right (“endowed by their Creator with certain unalienable Rights”).
The point is, although the clause was APPARENTLY sufficient to enable Madison/Congress to grant copyright (by way of securing a common law right as others would assume) it was not ACTUALLY sufficient. Copyright is the grant of a monopoly and not at all law that secures a common law right.
So, Congress did not have power to grant copyright. It only had power to secure an author’s natural right to exclude others from their writings, i.e. our physical power to exclude burglars from copying our writings, such as our memoirs in our desk drawers (a natural right) – not to exclude those who purchase copies of those memoirs from us, from making and distributing their own copies (a privilege).
So, the cartel, conceding that the US Constitution empowered only the securing of a natural right, must now pretend that a reproduction monopoly is a natural right. And like James Madison, they will lead their audience to believe this without actually asserting it.