Catiline's Journal: Eldred Thoughts: One Week After

This being the one-week "anniversary" of Eldred v. Ashcroft in the Supreme Court, I am going to post the various thoughts I've gone over in the week since. I'm feeling rather secure that Lessig covered his arguments well, so my take on the copyright clause here is going to be quite different.

First, to lay the groundwork of the discussion. The Copyright clause grants Congress 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". Any law passed that exceeds this grant of power is unconstutionioal.

Lessig stood before the Supremes and made a very convincing argument for "limited times" being a limit on congress' power. No doubt, he indeed was sucessful in prosecuting that vein; however, in reading the Constituition again last week it was a different word-- "exclusive"-- that lept at me. I realize that the Eldred case cannot address both issues; however I would imagine that this is the single word in the copyright clause that will overturn the DMCA.

Now, (an excerpted) reading the clause without that single word forms "...securing for limited times to authors ... the right to their respective writings...".

"Wait a minute," you may ask, "How does that make things any different?" The answer, I'm afraid, is dreadfully simple and one that seems to be in conflict with all of the US' copyright history. If the clause must establish exclusivity for authors, then it implies that the rest of the population has right to the same writings. (Most simply put, this one word is the link between the copyright clause and the first amendment: what good is free speech if there is nothing to be said?)

Now, examine the effects of the DMCA in the light of whole-populace rights to a work. Either it is illegal because it attempts to extend copyrights for an unlimited time (by not having a exemptive clause for public domain works), or it is illegal because it attempts to secure exclusive rights via mechanisms outside of the grant of power contained in the copyright clause.

Damn, I just had another thought. That single word, "exclusive", also seems to veto / trump the line of reasoning that states computer programs require an EULA because the computer will copy the data in the process of executing it (thus violating copyright). After all, if the rights of the author in nature are not exclusive (and are made so only by the acts of congress), then such a requirement is (depending on the exact wording of the fair use clauses) nonexistent.