Dangerous Reading: How a subversive legal theory can make a good copyright case go bad

US Constitution, Section 8, Clause 8: 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;

You may breathe freely, without a tax, the same air another man has breathed, and think a thought someone else may have thought, also without a tax. Yet you own the breath as it was breathed, whilst in you, and the thought, too, whilst it is in your mind. These are not "public domains", these are private things.

In the clause 8, an exclusive right is secured -- secured by the government. Why is that governmental action needed? Becuase a man, himself, has not a chance of securing any such right, even were he a powerful man and willing to use force to do so, and in an extravagantly widespread way. Not even all the agencies of government alone can secure that right completely, for all the force and authority they can muster.

Why? Because you could still invent, discover, or create the same thing youself at any time in any place, perhaps as a copy or by influence, or perhaps by orginality. The thought, the idea and what you cause to follow from it are your property, they are what you can hold. Nor are they "public domain" -- say by holding your copied machine you have no intent of letting others use it.

Government can restrict very effectively your access to a place or ban the sales of this thing or that. But you retain the ability to create and construct, and no government will ever have the power, save by imprisonment, of taking that away.

So what is meant in the statement "secure exclusive rights"? And what can an honest charter of government mean by that boldness?

These are not "public domains", these are private things.

Recently, I came across what is probably the first patent, issued to Fillipo Brunellesci, in 1421, in Florence, Italy. The preamble clearly states the purpose of the patent:

"Considering that the admirable Filippo Brunellesci, a man of the most perspicacious intellect, industry and invention, a citizen of Florence, has invented some machine or kind of ship, by means of which he thinks he can easily, at any time, bring in any merchandise and load on the river Arno and on any other river or water,for less money than usual, and with several other benefits to merchants and others; and that he refuses to make such machine available to the public; in order that the fruit of his genius and skill may not be reaped by another without his will and consent; and that, if he enjoyed some perogative concerning this, he would open up what he is hiding, and would disclose it to all; and desiring that this matter, so withheld and hidden without fruit, shall be brought to the light, to be profit to both to said Filippo and to our whole country and others; and that some privilege be created for said Filippo, as hereafter described, so that he may be animated more fervently to even higher pursuits, and stimulated to more subtle investigations..." (emphasis added)

Ideas are private things - as long as you keep them to yourself. Once divulged, they do indeed enter the public arena, the "domain" of the public. Of course, anyone can choose to keep their ideas private - through trade secrets, or through private, by invitation only displays or performances of works of art.

Patents and copyrights seek to induce artists and inventors to share their works with the public; in exchange, the government secures their interests for a limited time.

I understand what is meant by the public domain -- it is what may be observed or freely used by the public. Certainly as this very early patent demonstrates, by providing a patent Florence hoped to cause Brunellesci to give up his secret, to make it public. And the Framers surely hoped for that effect of patents and copyrights on secret holders.

Yet the Founders viewed philosophy through a private property and inseperable individual rights lens, and their legalisms are best interpreted from that aspect, rather than considerations of the "public domain". In so doing one is likely to achieve deeper understandings of the law, and how the Framers came to it.

So what is meant in the statement "secure exclusive rights"? And what can an honest charter of government mean by that boldness?

You might also ask what they mean by "promote progress" and "limited." Such public-mindededness and limitation of state power! Not so very "bold" at all.

You might also ask why I can call you a wife-beating kiddie porn monger after you are dead and you have no recourse, while somehow this concept of explicitly "limited" protection lives on, mainly for the benefit of your publisher nowhere named in this clause.

Correct! And this also illustrates how deep the rot has gone. The Library of COngress should be making electronic versions of out-of-copyright books available in commonly used formats. It could do so at a low cost compared with operating a physical facility. Yet it does not, mainly due to the corrupt influence of Hollywood copy protection Nazis. They fear that enahncing the power and benefit of public domain works would remind people too much of the goal of the copyright clause, which is to promote progress.

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