Pulpit Bulls

Policy, Politics, and What's In Between

The Constitution and the Copyright

Posted by Eric on June 26, 2009

Over at RealClearPolitics, Cathy Young pens a sharp piece about a quasi-sequel to Catcher in the Rye written by a Swedish humorist called, 60 Years Later: Coming Through the Rye. A judge has put a restraining order on the novel, in compliance with a copyright infringement claim filed by J.D. Salinger’s attorneys. Young uses this to make some smart observations about the draconian nature of intellectual property laws in the United States and invoked copyright critic Lawarence Lessig’s belief that, “unless copyright law is reformed, it will end up stifling the creativity of a generation.” I think that’s correct, but let’s also remember that overbearing copyright laws like the DMCA stifle technological innovation and that stringent patent laws prevent things like medical patients buying life-saving pharmaceuticals at reasonable prices.

But corporate copyright holders are powerful and have lots of money that they share with congresspeople who also like power and lots of money. That’s why every time Mickey Mouse’s copyright is about to expire, congress seems to pump out a new, stricter sets of laws and, whadya know, Disney still owns the rights to Mickey. While congress changing its mind isn’t very likely, it is always important to note that current copyright laws are pretty contrary to the founding fathers’ wishes. From Article 1, Section 8 of the Constitution the founders write:

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.

The Commerce Clause, at least in its current application, would certainly give congress jurisdiction to pass intellectual property laws, so Constitutional objections probably are a waste of time. Still, the founders were right and current copyright enthusiasts are wrong. Our current intellectual property laws are misguided and this should be repeated again and again.

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