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).
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.
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.
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.
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. ”
Last I checked, Thomas Paine did not have a hand in writing the Constitution.
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.” 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).
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.
Many people confuse ‘copyright’ with ‘exclusive right’ (as recognised by the US Constitution of 1787), and thus presume that copyright is both a natural right and constitutional. Some people even cite the constitution’s recognition of ‘exclusive right’ as equivalent to recognising copyright as a natural right, and so term this the ‘copyright clause’.
There is also a misguided notion that the constitution can grant rights to US citizens, and that copyright is such a granted right. It can do no such thing, and did not, as it instead only recognises the natural rights that the citizens already have that they empower the government to secure. Copyright is a mercantile privilege, enacted after the constitution, supposedly to persuade authors to release their writings from the protection of their exclusive rights for the public’s benefit – by granting authors the reward of a potentially lucrative reproduction monopoly over their published works. Thus copyright is a privilege granted by the government – unconstitutionally.
Nevertheless, despite being a mercantile privilege, copyright both helps secure an author’s exclusive right to their (unpublished) writings and incentivises the author to publish them (given the monopoly).
To help clear up any confusion between ‘exclusive right’ and ‘copyright’, I will now explain what an author’s exclusive right is, and why it is natural and self-evident, and consequently able to be recognised by the US Constitution.
Exclusive Right vs Reproduction Monopoly
Secondary to a human being’s natural right to life, is their natural right to privacy. This is the individual’s natural interest and ability to exclude others from a space about themselves, their dependents, and their possessions, and from within their larger enclosures thereof such as houses. This space is known as the individual’s private domain, and it is from the individual’s right to privacy (to secure and exclude others from their private domain) that material and intellectual property rights derive.
There are three key mechanisms for obtaining property, which are:
- gathering (from one’s environment whether a natural resource or another’s abandonment)
- creation (physical or mental labour), and
- exchange (from receipt of purchase or gift).
In all cases private property is obtained by introducing objects into one’s private domain (each with a degree of intellectual and material component).
An author’s intellectual works that they fix in a physical medium, especially their original writings, are self-evidently the author’s intellectual property. These writings are what they have a natural exclusive right to, especially given that in the traditional case of writing they must first manifest under the private hand of their author’s body, and from thence to storage elsewhere within their private domain. It is up to the author whether they keep their writings private, exclusive to themselves, or whether they pass them on to others (either included in their confidence, or for public dissemination).
Thus, having the natural right to exclude others from their private domain, an author has the natural right to exclude others from any action concerning their private writings, whether reading, copying, performing, communicating, removing, destroying, or anything else. However, they only naturally have this right over the writings within their private domain. The author has no natural ability and consequently no natural right to control what others may do with the writings the author may have provided to them (whether by purchase or gift).
Unfortunately for US citizens, their exclusive rights to their writings, designs or any other of their intellectual works or property are rather poorly protected. Despite being constitutionally empowered to secure them, the state does not police and prosecute those who violate an author’s exclusive right to their writings – as it should (and as it does for their material property).
So, you may now see why I so often argue that it would be better if the unconstitutional reproduction monopoly of copyright was abolished (being intended for exploitation by the press), and was replaced by law that properly secured an individual’s exclusive right to their writings, designs, and other intellectual property. The constitution is supposed to be about equally protecting the natural rights of the individual in a stable and free society, rather than to be a means of privileging commercial corporations above them, to exploit them (irrespective of alleged societal benefits).
Thus ‘exclusive right’ is an individual’s natural intellectual property right that is not properly secured despite constitutional recognition, and ‘copyright’ is an unconstitutional reproduction monopoly that only coincidentally helps the wealthy individual (or their publishing agent) secure their exclusive right, but primarily rewards the publishing corporation at the expense of the people’s suspended cultural liberty.
Human rights originate in Nature, thus, rights cannot be granted via political charter, because that implies that rights are legally revocable, hence, would be privileges:
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.
The fact, therefore, must be that the individuals, themselves, each, in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.
Government’s sole purpose is safeguarding the individual and his/her inherent, inalienable rights; each societal institution that does not benefit the nation is illegitimate — especially the Monarchy, the Nobility, and the Military.
I’m interested in an example of poorly protected exclusive right in the U.S., and what would be a good protection.
Say, for example, that I am writing in my private diary at a coffeehouse, and someone looks over my shoulder and sees my brilliant prose and then blogs it for all the world to see. Is that an example of my exclusive right being violated, and therefore should be a criminal act?
Another issue that comes to mind is “expectation of privacy”. Is it reasonable for me, writing in my private diary in a public place to expect a level of privacy that should be protected by law?
Another scenario: A man enters my home with my permission, but without my permission he copies my diary and posts it on the Internet. I imagine that I have civil complaint, but not a criminal complaint. Is that what you mean by poor protection of an exclusive right?
Given you are in a public place, and your pages are visible should people look over your shoulder, for which you have no physical barrier, then it’s doubtful that this could be considered a significant violation of your privacy. Perhaps this is more an impolite invasion of your personal space? On the other hand if there is an overhead CCTV camera recording your diary that is then transcribed and published, perhaps this becomes significant? These are borderline cases in need of arbitration. One could say that recordings of personal spaces may only be made by persons present with those recording devices in plain sight and in the same positions as their eyes or ears – in order that people can distinguish between innocent reportage and being spied upon for purposes of IP theft or other significant privacy violation.
Anyway, I’m more concerned with privacy and an author’s exclusive right to their writings being a more ethical underlying principle in recognition of intellectual property than the commercial incentive of a reproduction monopoly.
If you permit someone to enter your home then anything not locked up is effectively made accessible to them, and they are free to publish it. The only constraint upon them here is their respect for your confidence in them and their discretion, and potential repercussions to their reputation should they be indiscreet or otherwise break your trust.
Protection of someone’s exclusive right is against theft/copying/communication of their works by unauthorised persons – persons that have not been made privy to their writings (specifically or implicitly).
For example, suppose you have a 200 year old manuscript and a burglar comes in and photographs its pages. Because the monopoly of copyright will have expired (if it ever applied), then copyright doesn’t provide any protection. You instead have to seek some other remedy. In some jurisdictions there are certain works not protected by copyright such as recipes, so if someone steals a copy of your secret cookie recipe even copyright can’t help you.
Even if you have a manuscript that you recently wrote yourself, if a burglar takes copies and publishes them you won’t get much help from the police in finding out the culprit (if they caused no damage and stole no material property), nor will they arrest them for copyright infringement.
So, yes, IP theft should be recognised to be as serious an offense as theft of material work. However, there should be no such thing as a reproduction monopoly – infringement of such is certainly not theft, despite publishers wishing otherwise.
We can police the boundaries of our private domains, but we cannot police others to ensure they do not make or share copies of the works they’ve purchased.
Could one enter into a contract that constrains reproduction?
For example, could an author contract with a publisher to produce 100 copies of a work, and then sell those copies under a contract with the buyers that they cannot reproduce the work themselves? Or would this be akin to contracting oneself into slavery (which I presume can’t be done).
Jim, without copyright, this cannot be achieved – unless slavery was legalised, i.e. people were once again permitted to alienate themselves from their natural, (and what should be) inalienable, right to liberty.
However, you could make non-copying a contractual condition, e.g. “Whilst you and your customers abstain from producing unauthorised copies, I’ll continue to supply new work to you at $5 per copy, however should I find unauthorised copies in circulation I’ll discontinue my supply at that rate, but will consider negotiating a supply at a higher rate”. Though such a condition is unlikely to be particularly effective or beneficial.
I like your explanations. It’s a fairly consistent viewpoint. I also now find interpreting the Promote clause along these lines to be more natural (the meaning of the words seem less foreign and the overall intentions seem more consistent with the overall goals of the Founding Fathers, eg, as you mentioned here www.digitalproductio… ).
At least two things bothered me as I was reading your comments. The first is that you seem to skip the inventors/patent scenario. Does it make sense to talk about protect privacy in this case? The other difficulty I had was that “authors” frequently want to have their works be published. In particular, this would seem to be the case under the context of promoting progress.
Well, I’m glad to say that I think I have resolved the confusion: The securing (the helping to safeguard the privacy) should help promote progress by helping authors/inventors better protect their position of leverage (privacy) prior to making a disclosure to others and to perhaps have redress should that privacy be broken (but redress should not unduly burden others, eg, as you quoted from Jefferson, or fail to promote progress).
It would seem that laws aiming to fulfill this requirement would do things like, at the author’s option, require compensation or sharing of profits should a (eg) publisher make money off a work whose origin they claim they did not know but which turns out to have been a work taken from its author without permission. Also, you could insist on precise works being removed from further publishing, but it seems there is little that could be done to put ideas and anything else gained back in the bag. There could be stiff fines or jail time for those that were found guilty of exposing the works. Etc.
To specifically try to put the cat back in the bag by prohibiting the dissemination of ideas seems considerable overkill because of the attack on liberties. This is particularly true the more that other work differs from the actual literal writing that was exposed; the barring on idea reuse seems very unlike the intention of the Constitution anywhere, and is a sure way to hinder progress.
So it is good to see the Framers of the Constitution likely did not foolishly suppose that monopolies might be a good idea. Now, we just need to get back to the drawing board to help strike a balance that is actually fair to everyone and might conceivably promote the progress.
[BTW, I like the “uncopyright” share-alike like copyright license at the bottom of the page.]
Very well thought out.
I found your article from a comment about my article.
Jose_x, I don’t mean to skip the issue of patents, rather to focus on the more familiar issue of copyright.
Privacy is as relevant to designs as it is to works of literature. That mechanical and literary works occupy distinct industries and means of reproduction may give rise to distinct privileges (patents vs copyright), but the natural exclusive right to an intellectual work is unethically augmented by an unnatural reproduction monopoly either way.
It is industrialists that covet the monopoly, and a prosperous industry that attracts and sustains the parasite that the privilege of a monopoly is. Industrial progress does not result from monopoly, it gives rise to it. It is a convenient illusion of correlation that the inverse causation can be pretended. This is to claim that since patents paralleled the industrial revolution that such monopolies must have promoted progress (instead of progress promoting monopolies). Corporations, being without conscience or scruple, are driven by competition. The pinnacle of competition is to win the grant of a monopoly. Thus when corporations become sufficiently industrious and wealthy they succeed in lobbying for their ‘protective’ legislation. And, as others have observed, when a corporation’s products are no longer competitive in the marketplace, the corporation resorts to the legal weapon of their patents (as Dick Dastardly utilises underhand means to eliminate his faster competition).
Rather than design vs literature, a more fundamental distinction that can be made, is between material and intellectual aspects of works (formed/fixed in a physical medium). And this is simply due to our greater facility at reproducing and communicating information than matter. This could change in the future – if there was a matter replicator/telecopier it would be just as much a privacy violation for a burglar/telespy to make a material reproduction of a private work as a visual one. It is the unauthorised transgression of the physical boundary of the individual’s private domain that is the natural rights violation. Law should assist in the securing of this natural right of the individual, their privacy and exclusive right to their possessions, and the remedy of any violations that do occur, i.e. reversal, restoration, restitution, recompense, reimbursement. etc.
So, an inventor has as much privacy as a vintner, and a poet as much as a potter. None should have their material or intellectual works stolen. All have a natural ability and power to secure their works against burglars (unauthorised access, use, consumption, reproduction, removal, etc.) and consequently a natural right to exclude others from them. Whether comestible, craftwork, design, or literature all works must be recognised by law as private property and products that may be exchanged in a free market. And a free market is a market free of monopoly.
Individuals who create works will be interested either in disseminating them to promote themselves (their skill), or to market them, to exchange them for the money of those interested to receive them.
I appreciate that one cannot ‘put the cat back in the bag’ as it were. However, one can place some degree of embargo upon the dissemination of stolen works (and derivatives), to retain something very similar to copyright except that it applies solely to those works that can be demonstrated to have been stolen (obtained via burglary). This embargo would be automatically lifted the moment any of those privy (having authorised access) to the work decided to publish it (make it available to any person). There are some cases in which violation of privacy is warranted in protection of life, and thus embargoes would not be granted in such cases, e.g. upon the disclosure of secret test results that indicated a drug had dangerous side effects, etc.
Deterrents and remedies for privacy violation are wide open to debate in terms of justice and effectiveness, however, the principle remains that the government should help secure the individual’s natural right to privacy, their exclusive right to all discrete physical objects in their private possession, whatever the degree of their material or intellectual aspect.
Naturally, the securing of individual privacy does not impinge upon the liberty of the public, and that means no monopoly or other privilege should be granted, and any already granted should be abolished.
I think you’re right about going back to the drawing board. We do need to start sketching out what more ethical legislation would look like, i.e. with respect to the protection of all individuals’ natural rights concerning the possession, production and communication of information and intellectual works.
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. — 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.
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 anathema – 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.
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.
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
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.
Monsters From The Id · Thursday April 25, 2013 by Crosbie Fitch
On Annemarie Bridy’s Freedom-to-Tinker post Copyrights, Fundamental Rights, and the Constitution a commenter by the name of Mike Lippert seems to think I am claiming that copyright is a natural right.
“Copyrights (and patents) seem clearly legal rights created and enforced by government, not natural rights”
It’s good that you, me, and the judiciary recognise and accept that copyright (viz Statute of Anne 1709/1790 onwards) is a privilege created/granted by the state, to be enforced/prosecuted by the holder (albeit relatively recently augmented by state assistance thanks to concerted lobbying), at the holder’s pleasure.
The Constitution empowers Congress to secure the author’s (already existing/natural) exclusive right to their writings. It does not empower Congress to grant a privilege.
If the author already has a right, it’s a right they’re born with – not a ‘legally created right’ granted to them, or one they purchased/inherited/received from another author.
I have not actually equated common law rights with natural rights. However, it would be interesting to enumerate those common law rights that can be distinguished from natural rights, and to analyse precisely how common law is not simply an evolving codification of natural law. But, I digress.
By “aka natural right”, I suggested that Madison, in saying that copyright had been solemnly adjudged to be a common law right, intended his audience to understand that copyright was a natural right (inherent/innate to the author) that, by the proposed clause, Congress should therefore be empowered to secure.
If it wasn’t a common law right, and just another state granted privilege (such as a monopoly or Letters of Marque), then Congress would have to be empowered to grant it – not just empowered to secure a pre-existing right.
Remember, that while copyright/SoA was not unfamiliar to The Framers (or various states’ legislatures), the Constitution could not admit the existence of privileges already granted – in the new or old world. This is why Madison had to suggest that copyright wasn’t a privilege – in order that when he legislated the Statute of Anne as the 1790 US copyright act, people had already been primed to recognise this as law that ‘secures a common law right’ (though it is of course nothing of the sort, but the granting of a monopoly for the benefit of press & state).
The point is, the clause doesn’t actually empower the granting of copyright or patent, despite enabling Madison’s subsequent granting of those monopolies to proceed with little or no protest. We thus have the granting of the monopolies we call copyright and patent as a fait accompli, and today monopoly-loving lawyers bend over backwards to convince everyone that Congress, of course, had the power to grant these monopolies.
It’s all rather academic really. As Annemarie observes, the power of Congress is no longer limited by The Constitution, or at least, by strict readings of it.
James ‘Dr Frankenstein’ Madison chose to unleash Queen Anne’s ‘creatures of statute’ upon the American people, and now they roam the entire planet like Monsters from the Id.
The phrase “to secure the author’s (already existing/natural) exclusive right to their writings” isn’t just a very particular case of “to secure the owner’s (already existing/natural) exclusive right to their belongings”?
Reading that phrase, it’s easy to get confused by the wording (and years of indoctrination) and assume that the “exclusive right to their writings” means something else, like a supernatural power to control what others can do with the copies of his writings.
It says nothing about what others can do with their copies of an author’s writings, which brings me back to the generalization of that particular phrase: “to secure the author’s/owner’s exclusive right to their writings/belongings”.
The issue on that phrase seems to boils down to a misunderstanding of what copyright supporters and freedom supporters interpret as “exclusive rights”.
Yes Julián, the author clearly has a natural (common law) right to exclude others from their writings.
Per Wheaton v Peters
while the common law undoubtedly protected the right to one’s unpublished writings — e.g. a diary, personal letters
This is why Madison primed his audience to understand the clause as empowering Congress to secure a natural right (by saying that copyright had been adjudged as a common law right), because securing the individual’s (natural) rights was the whole point of instituting a government in the first place.
That to secure these rights, Governments are instituted among Men
So, per the Constitution, Congress has power to secure the author’s exclusive right to their writings, and on the same basis, the inventor’s exclusive right to their designs, but not to grant transferable reproduction/manufacturing monopolies (for immortal corporations to consequently amass into an arsenal). Copyright (nor patent) does not secure a natural (aka common law) right, despite Madison saying copyright (& patent) had been adjudged to be a common law right.
Today, copyright is described as an ‘exclusive right’ precisely in order to hoodwink people into believing it to be the right that the Constitution empowered Congress to secure. But of course, the Constitution cannot empower Congress to secure a right that doesn’t already exist – only to secure one that does, or to grant a privilege (which would have been rejected by other Framers as antithetical).
Thus you will see lawyers carefully seguing from author’s exclusive right to copyright without actually declaring them to be the same thing. You can see Annemarie making statements about ‘Exclusive rights’ (in the sense of legislatively created ‘rights’) and then statements about ‘copyright’, but she didn’t actually say a) that copyright was the exclusive right the Constitution empowered Congress to secure, nor b) that copyright secured an author’s exclusive right to their writings.
It is amazing how many people think the progress clause clearly empowered Congress to grant/create copyright, even though, from Madison’s own explanation, the clause is intended only to empower Congress to secure an author’s common law right – because Madison knew that’s all the power he/Congress would need to legislate copyright/patent – because he’d already primed the other Framers with the understanding that copyright and patent were common law rights.
As Madison explains in Federalist #43
The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors.
Hence Congress can secure common law rights – not grant monopolies – even though Madison knew copyright and patent weren’t common law rights and were obviously grants of monopoly.
While Madison may insinuate monopolies are common law rights to Framers en masse, when it comes to discussions with a conspirator, Jefferson, he reveals he knows precisely what he’s talking about, i.e. monopolies, and that they are privileges to be granted:
With regard to monopolies they are justly classed among the greatest nusances in Government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases a right to the Public to abolish the privilege at a price to be specified in the grant of it?
Corruption from the start, that even Madison acknowledged, that thanks to his weakness, we enjoy today – cultural and technological gridlock.