On Thu, 29 Jul 2010, Myers, John F. wrote:
> Article I, Section 8, clause 8:
> [Congress shall have the power] 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.
>
> Actual applicability to specific scenarios may vary.
How true that latter statement is. The interpretation is determined by
the courts according to their acceptance of particular political (i.e.
social) philosophies. It could, for example, be argued that said
exclusivity rights do not demonstrably "promote the progress of science
and useful arts" in their inherent restriction of freedom of information,
particularly when those rights belong to other than the authors and
inventors, or the literary or scientific communities, themselves (e.g.,
commercial publishers).
It could also be argued that, if the purpose of the exclusivity is
primarily to generate profits that do not directly promote said progress,
then said exclusivity is not permissible. Was that concept of making a
profit being the primary means of promoting progress around at the time
the Constitution was written, or is that a point particular to a single
political philosophy?
Another argument dependent upon political philosophy is whether "authors
and inventors" are "individuals" with individual rights (e.g. the rights
of groups of collaborators actually belong to each and every individual
collaborator in the groups, such as in our arguments against OCLC), or
whether "sponsorship" of authorship or invention or distribution of
writings and discoveries for profit determines corporate ownership of the
rights to the individuals' creations.
So, what is argued for what reason is paramount. What is argued will be
determined according to (see previous reference) which of several
political philosophies the protagonists espouse, i.e. whether the society
being protected by the legal system ought to be based upon egalitarianism,
exclusionary economic principles, individual autonomy and rights, or
absolute majority rule. The Constitution had no intention or historical
or contemporary social foundation for considering corporations to be
individual persons.
This whole mess could go to the Supreme Court and have very broad
implications. The Supreme Court cannot *legally* interpret the
Constitution according to any particular political philosophy (which it
was specifically written to avoid), particularly if the institutions it
rules about did not exist at the time of the writing of the Constitution
(but it is, in fact, a political body, not a strictly legal body).
The final step, of course, of which we should remain constantly
cognizant, is the potential elimination of the rights to freely distribute
or resell published material without the expressed written consent of the
original publishers of said material (which is contrary to their economic
interests, and could do in libraries and booksellers).
Cheers!
jgm
John G. Marr
Cataloger
CDS, UL
Univ. of New Mexico
Albuquerque, NM 87131
jmarr_at_unm.edu
jmarr_at_flash.net
**There are only 2 kinds of thinking: "out of the box" and "outside
the box."
"We can only progress by looking at today's facts as tomorrow's
history."
Opinions belong exclusively to the individuals expressing them, but
sharing is permitted.
Received on Thu Jul 29 2010 - 17:05:47 EDT