Friday, May 24, 2002

It <i>is</i> temporary. No, really. These aren't the droids you're looking for.

Ever since reading the
opening briefs and

amici curiae

in Eldred v. Ashcroft, as well as the infuriating
opposing brief and the
petitioner's follow-up,
I've been thinking a lot about copyrights and patents.

I find myself in overwhelming agreement with the petitioners, who hold that
the CTEA is unconstitutional. At the very least, the practice of extending
copyrights at the behest of wealthy copyright holders is frightening
beyond belief. While I'm not particularly surprised by the corruption in
this case, it still makes me ill.

It's also clear to me that the spirit of the phrase "limited Times"
in the Copyright Clause is being violated by repeated term extensions.
The arguments posed by the government basically boil down to "we have The Power, neener-neener", but they refuse to read any significance into that
phrase in the Constitution. (The "limited Times" phrase, not the "neener-neener" phrase.)

A different question has been occupying my mind, though. Whether
or not the CTEA is constitutional, one might ask the question: Is the
limited Times restriction actually a good thing? Maybe the Constitution is wrong on this point. A friend of mine suggested that there are rational arguments on both sides of the issue, so since then I've been trying to see if there really are.

The philosophy established in the constitution (and upheld by later legal precedent) is that copyrights, patents, and other forms of intellectual property aren't "natural law"--they aren't fundamental to the nature
of ideas. Ideas want to be free, and by their nature are free, but we willingly restrict that freedom so that the next generation of Palm Pilots will
be even thinner. (Well, the Framers didn't word it that way, but that's
what they meant.)

The natural freedom of information makes sense to me. As long as I keep an
idea in my head, it's mine. But the moment I communicate that idea to someone else, I've given up control. If I expect that person to do nothing
with the idea, then why did I share it with them in the first place?
It's unnatural to assume that others won't use an idea simply because
I told it to them. But that's what copyrights and patents achieve: they make it
illegal for people to act on certain information.

The limited durations of copyrights and patents underscore their artificiality: after a certain self-imposed time period, the ideas return to their
natural free state. Makes sense to me.

The primary counterargument I've heard is as follows: Invention is hard,
and when you work hard come up with an idea, and it's your idea,
it's nice to think that you could dictate how your idea is used, possibly forever. Who better to decide, after all, since it's your

Well, maybe that's nice to think, but the basis of that argument seems to be ego, rather than any aspect of Common Good. The Framers got it right when
they limited the duration of copyrights and patents. Pander to the ego
and greed of inventors temporarily, but maintain the fundamental freedom
of information by limiting the duration of that pandering.

I'm still interested to hear rational arguments on the other side, though
I can't reconstruct any myself. Any takers?


  1. A nice thing about Copyright, though, as opposed to patents, is that you can't copyright a basic element. A melody in music, a recipe, a technique of arranging notes -- none of these are copyrightable. Patents are a different beast, naturally. This means that even if "Flight of the Bumblebee" remained forever out of the public domain, really quick up-and-down songs made of eighth-notes played manically would arise to replace it. Most of them would entirely fail to gain public acceptance, to the public's eventual good.

  2. I suppose you could base your argument on the idea that people should always pay royalties to those whose work you stole, come to think of it.
    It would mean that market forces (i.e. the copyright/patent holder) would choose how widespread the further development of any given idea was. As if, for instance, Diffie and Hellman got to determine the full future development of all forms of public key cryptography. Given the 20-year span of computer-related patents, we've kind of got a taste of this now.
    The Open Source freaks (like me) don't much like it, and you'd expect a common strategy among monopolists to be licensing a patent cheap, making it very widespread, and then charging a vast amount when it's no longer dispensable to society. The guy who invented agriculture, for instance, would be able to hold the entire world hostage under this system :-)