[freejazz]

The Constitution requires that Congress setup laws for both copyright and patent, for the good of the nation. Patents were always intended for the overall wellbeing of the nation. That's not to say that is what has always been achieved by the patent system, but it's not some sort of conspiracy. If anything, in history, they were always OSTENSIBLY for good, but perhaps ACTUALLY bad. So I find your statement to be A) historically and factually inaccurate B) literally incorrect given your usage of ostensibly.

[MegaButts]

> The Constitution requires that Congress setup laws for both copyright and patent

No it doesn't, it grants them the power but it doesn't specify they have to do it.

“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….”

There is a big difference between having a power and being forced to use it.

[freejazz]

I don't think that's a great reading of congress' enumerated powers. The shall refers to the powers being powers that can be used when appropriate, to achieve the intended goal of the power. Must language, here, would imply a constant duty to use each power.

My reading is that Congress has an OBLIGATION to promote the arts and sciences, and has the power to use copyright and patent law to achieve those goals as congress sees fit.

[ghayes]

By your very logic, does that mean the second enumerated power "2. To borrow money on the credit of the United States;" means that we are also obligated to be in debt? Would it be unconstitutional to pay down the debt of the nation?

Additionally, even if Congress had an obligation to grant intellectual property rights, couldn't they simply grant patents for a term of 24 hours? or 15 seconds?

From what I've read (c.f. Clinton v. City of New York 1998), Congress can decline to use a power, but it cannot grant that power to another branch of government.

[MegaButts]

IANAL, but the fact that it says nothing about an obligation (I don't even believe it's implied, but I'm not a historical legal scholar) leads me to believe you're inserting your own bias.

[freejazz]

One thought would be, if there was no duty implied in the specific enumeration of this power and it's implied goal, then why wouldn't it just be part of the necessary and proper clause?

[MegaButts]

I think a much more obvious question is why wouldn't they just write down what they meant instead of obfuscating their intentions?

You are literally looking for something that isn't there, because it is not written down.

I would love for a lawyer to chime in, because admittedly this is not my wheelhouse.

[freejazz]

If you think that you probably shouldn't deal with a lot of statutes. For what it's worth, despite your contentions, I don't at all believe it is confusing. But I'm a litigator and I went to law school.

[anotherman554]

If you think the necessary and proper clause can be read to authorize patents, you probably have a very different idea of how to interpret the constitution than the drafters of the constitution.

[freejazz]

That's not what I wrote!

[npsomaratna]

Agree with this. In administrative law (the principles of which apply here) certain words have technical interpretations that are very different from the colloquial meaning. "Shall" is one of those words - and I too would interpret this as an obligation.

[kelnos]

But it doesn't say that "Congress shall promote the progress..." it says "Congress shall have the power to promote the progress..."

If the framers wanted to require that Congress do this stuff, why insert "have the power to" unnecessarily? There's no need for that phrase.

As another point against this being an obligation, if you look at the list of enumerated powers[0], you'll see some that are clearly not obligations. Congress doesn't have to borrow money. They don't have to maintain a navy. They didn't have to establish post offices. They didn't have to create a federal court system. (Granted, it makes a lot of sense for them to do many of these things, but it feels wrong to think that they're required to.)

[0] https://en.wikipedia.org/wiki/Article_One_of_the_United_Stat...

[npsomaratna]

This area of law is very tricky. As I've stated above, the technical (i.e., legal) interpretation can be quite different from how a layperson would understand the same words.

The basic idea here is that an authority (e.g., Congress) that has been given a specific power (e.g., declaring war) is obligated to exercise that power where appropriate.

Do note the specific phrasing above: if there is a situation in which exercising that power is the appropriate course of action, then that power must be exercised. The authority cannot choose not to exercise the power in such a situation.

So, Congress doesn't have to declare war for the sake of declaring war. However, if there is an existential military threat to the USA (e.g., aggression by the Japanese Empire in WW2) you could argue that Congress is obligated to declare war, as this would be an appropriate situation to exercise that power.

Of course, the above explanation is very simplistic. There can be specific wordings that clarify how much discretion that authority has; there may be case law pertinent to that area; and whether a given situation mandates "appropriate" exercise of a given power is never a black-and-white decision.

[kelnos]

That cuts both ways, though. It would be pretty easy to argue that it is not the "appropriate course of action" to implement the copyright or patent system in the way we have, and that, indeed, the "appropriate course of action" is to have minimal -- or even no -- protections.

[freejazz]

You get it

[AnthonyMouse]

Don't forget "To declare War" -- seems pretty unreasonable to read that as an intention to prohibit peace.

[freejazz]

That's not the reading I'm arguing for. The reading I'm arguing for is that it requires Congress to declare war when it is appropriate for Congress to do so

[Zigurd]

The Framers were skeptical of enabling government to give out patent and copyright monopoly grants. Jefferson wrote:

Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.

It is notable that patent and copyright are not natural rights. At no time was it assumed that people have such rights, nor that government, without explicit authorization could grant such limited term monopolies. Calling these monopolies "good" is definitely not uncontested, nor was it ever.

[freejazz]

It's true some of the founders were skeptical, I never said otherwise and I never said it was "uncontested. What I said was that it's inclusion in the Constitution is for a clear reason, whether or not the reasoning is valid is a different debate.

As I pointed out, the constitution grants congress the EXPLICIT AUTHORIZATION you refer to, for the very purpose of promoting the PROGRESS of the arts and sciences.

I guess you think that the promotion of the progress of arts and sciences is not inherently a GOOD thing, but I'd disagree and I think the implied reasoning behind it's inclusion is entirely self-evident.

[mjevans]

That seems like an unsubstantiated claim.

Does the current set of systems promote the progress of "science" and "useful arts" as they would have been known by those signing those laws many lifetimes ago?

From what I remember of other parts of the constitution and amendments offhand they generally don't include an explicit directive about why something is there. It's extremely implicit as an often obvious effect of what the law expressly allows or forbids.

Thus it is very reasonable to ask: Is the behavior we see from IBM in this news story promoting the progress of "science" and/or "useful arts"? Is the behavior of industry overall with respect to these tools doing more good or more harm?

[freejazz]

It seems like you don't fundamentally get the point...

The intent of the patent systems != what the patent system achieves

What I described to you, that you disagreed with was the intent of the patent system. If you want to debate what the patent system achieves, it's a much more complicated question.

[btilly]

That seems like an unsubstantiated claim.

It is substantiated by the text of the Constitution itself.

From what I remember of other parts of the constitution and amendments offhand they generally don't include an explicit directive about why something is there. It's extremely implicit as an often obvious effect of what the law expressly allows or forbids.

They generally don't. And therefore the statement of intent for this particular clause should be given more weight, not less.

[mjevans]

You cut out the very next sentence which describes the element that I am claiming is unsubstantiated.

Though you do understand the further elaboration of why I too feel it is __extremely__ important that there is a clause about why this power is reserved to Congress and a described intent / limit within which that power is to be used.

[btilly]

Unfortunately this clause was specifically litigated and we lost.

More specifically, can Congress achieve unlimited terms with regular copyright extensions to existing copyright? https://en.wikipedia.org/wiki/Eldred_v._Ashcroft ruled that they can. However their next attempt to extend has so far failed.

We will find out in 2024 whether they get it together, or whether Mickey Mouse enters the public domain after all...like it should have done in 1984. (That was the maximum that could have been expected when Steamboat Willie was released.)

[Zigurd]

"Framers" is more correct. Not all the Founding Fathers participated in authoring the constitution.

Secondly, an explicit reason implies a condition: Is current patent law actually fit for the stated purpose?

Lastly, another comment here refers to the language of "amendments," presumably the Bill of Rights. The Copyright Clause is a clause, not an amendment, and not part of the BoR.

[freejazz]

As I've said dozens of times now - "is current patent law actually fit for the stated purpose?" is an entirely valid, YET DISTINCT, question.

[fanatic2pope]

The Framers also actively supported and participated in the slavery trade, believing it was perfectly reasonable and rational to own people as property.

[matheusmoreira]

The intellectual property system may have been intended as a force for good. However, it's gotten to the point where everyone knows how to abuse the system and get away with it. There is no reason for anyone to recognize it as a legitimate.

Companies file deliberately vague all-encompassing patents that are very hard to understand and pretty much useless for the purpose of educating the public and advancing the state of the art. Patents are merely weapons to be used against competitors. Companies file patents despite the existence of prior art and not only are they granted by the patent office but they're also allowed to stand uncontested due to the prohibitively expensive nature of patent litigation.

Disney and its copyright industry friends lobbied the government and successfully cheated the public out of its public domain rights by extending the duration of copyright to ludicrous lengths. If that's not criminal conspiracy, I don't know what is. YouTube and the copyright industry cheat people out of their fair use rights every single day.

[freejazz]

It's weird that we expect the law to be perfect yet we don't expect that of other things. I think you make a lot of valid points. However, I think you miss the forest for the trees. The point is, if you don't like this system, another one would need to be put in its stead. Short of any ideas how that would work, I'm skeptical of the claim that these laws are illegitimate. I guess you don't think we should respect criminal law either? Should we not put any white collar criminals away at all because so many go free? It's an absurd argument that you are making, ultimately.