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Copyright is not a constitutional right, which you’d see if you hadn’t trimmed the opening phrase of that section out of your quote > Clause 8. The Congress sh

Copyright is not a constitutional right, which you’d see if you hadn’t trimmed the opening phrase of that section out of your quote > Clause 8. The Congress shall have 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. https://law.justia.com/constitution/us/article-1/50-copyrights-and-patents.html https://law.justia.com/constitution/us/article-1/50-copyrigh... All this does is allow for Congress to pass copyright legislation, without violating the 1st amendment, which it otherwise would.

wahern 7y ago
> All this does is allow for Congress to pass copyright legislation, without violating the 1st amendment, which it otherwise would. The First Amendment wasn't even drafted, let alone ratified, before the US Constitution and its Copyright Clause came into effect. The Copyright Clause exists because the Federal government's expansive Commerce Clause powers wouldn't exist for at least another 100 years. Without an express grant, the Federal government wouldn't have had any power to grant and regulate copyrights. Under modern jurisprudence, the Copyright Clause is unnecessary to grant the Federal government jurisdiction as copyrights are an archetype of a national commercial domain; even the most conservative rollback of Commerce Clause jurisprudence would be unlikely to change this. Instead, many legal scholars, including several justices in uncontended dicta, have opined that the clause effectively limits the Federal government's powers by restricting the scope of Federal copyrights (copyrightable subject matter, defenses to infringement, etc) to what was cognizable under the Common Law in 1789. (Indeed, the majority said exactly that regarding time limits, though AFAIK it's only in dicta have they said the clause implicitly limits copyright powers more generally.) So, for example, Congress could never completely legislate away a Fair Use defense. Likewise for doctrines like the Idea-Expression dichotomy, which Google heavily relied upon in their first trial (less so in their second trial because of appeal court decisions) to argue that APIs weren't copyrightable in the first place. It's true that the First Amendment is used--and used more often--to restrain the reach of copyright. But that's mostly because the First Amendment has undergone an expansive reinterpretation similar to the evolution of the Commerce Clause. The drafters would have perceived little, if any, tension, between the Copyright Clause and the First Amendment--mostly because of how they understood terms of art like free speech, but also because times were simpler then and the flaws and ambiguity in their legal concepts hadn't yet been revealed by 100+ years of litigation.

wahern 7y ago

> All this does is allow for Congress to pass copyright legislation, without violating the 1st amendment, which it otherwise would. The First Amendment wasn't even drafted, let alone ratified, before the US Constitution and its Copyright Clause came into effect. The Copyright Clause exists because the Federal government's expansive Commerce Clause powers wouldn't exist for at least another 100 years. Without an express grant, the Federal government wouldn't have had any power to grant and regulate copyrights. Under modern jurisprudence, the Copyright Clause is unnecessary to grant the Federal government jurisdiction as copyrights are an archetype of a national commercial domain; even the most conservative rollback of Commerce Clause jurisprudence would be unlikely to change this. Instead, many legal scholars, including several justices in uncontended dicta, have opined that the clause effectively limits the Federal government's powers by restricting the scope of Federal copyrights (copyrightable subject matter, defenses to infringement, etc) to what was cognizable under the Common Law in 1789. (Indeed, the majority said exactly that regarding time limits, though AFAIK it's only in dicta have they said the clause implicitly limits copyright powers more generally.) So, for example, Congress could never completely legislate away a Fair Use defense. Likewise for doctrines like the Idea-Expression dichotomy, which Google heavily relied upon in their first trial (less so in their second trial because of appeal court decisions) to argue that APIs weren't copyrightable in the first place. It's true that the First Amendment is used--and used more often--to restrain the reach of copyright. But that's mostly because the First Amendment has undergone an expansive reinterpretation similar to the evolution of the Commerce Clause. The drafters would have perceived little, if any, tension, between the Copyright Clause and the First Amendment--mostly because of how they understood terms of art like free speech, but also because times were simpler then and the flaws and ambiguity in their legal concepts hadn't yet been revealed by 100+ years of litigation.