[Harmon]

Originally Posted by Hitch

I'm gobsmacked by the incredibly creative interpretation of the Constitutional clause protecting copyright as meaning that IP "belongs to everyone." That's Marxist horsepucky.

It was not an interpretation of a Constitutional clause. It was the citation of the clause as evidence of the legal fact that at the time of the Constitution, the idea that you owned something you wrote and could prevent other people from copying it was very nebulous indeed. There were some statutes in England, and probably in the colonies if only by virtue of their having been English territory, that dealt with some aspects of who could print stuff. But it was not at all what we think of as establishing ownership rights in property these days. At that point, the King of England was undoubtedly of the opinion that when push came to shove, HE owned it all. In fact, I expect that if I researched the Federalist Papers, I'd find that this clause was intended to make sure that the Congress didn't try to grab off such rights for the federal government.

It is not so much that IP belongs to everyone as it is that IP, absent laws on the subject, does not belong to anyone, even the writer. In colonial times, it was illegal to steal the physical book someone wrote, but if I sat down with the copy he carelessly left lying around, and copied every word of it out, there was no law to stay my hand, or to prevent me from publishing & selling copies myself.

Whatever I write belongs to me. I can license it or not as I see fit, just as can anyone else. I'm under no obligation to "give" what I write to anyone. It's ironic to think that this argument means that if I write something, and DON'T copyright it, it's mine forever; but if I do copyright it, somehow that means that "it belongs to everyone."

It might be ironic if your premise were correct, but it's not. You do NOT own what you write, outside of the actual physical object, unless there is a copyright law to say so. In the absence of copyright, nobody needs your license to copy your writings. Oh, you can put your book in the safe, and try to keep anyone from copying it if you can, but if someone manages to copy it, they can - again, in the absence of copyright law - print it & sell it & keep the cash.

Your presentation of the law of copyright is exactly backwards. Copyright is an exception to the general rule that the writer does not, in common law, own what he writes write. He owns the paper, he owns the ink, but he does not own the words, nor the ordering of the words, nor the story, nor any of the things that are protected by the enacting of copyright laws.

One does not "copyright" things. The existence of copyright is established by the copyright laws, and applies to everything that is an original writing. This post that I am writing is copyrighted, although it might be that under the terms of service of Mobileread, I give up that copyright, or maybe it even belongs to Mobileread. I don't have to do anything to create the copyright - it exists whether I want it to or not. The only control I have is whether I want to enforce my copyright.

The whole structure of copyright is tottering, because it does not reflect reality anymore. And the concept of "intellectual property" is an increasingly incoherent legal concept. The only reason copyright ever really worked is that it was so difficult and costly to actually print and sell books. You needed supplies, a printing press, a distribution system, &c. But you don't need any of those things to publish and sell an ebook.

And while I agree, absolutely, that copyrights should not exist in perpetuity, they do NOT. The fact that they don't expire soon enough to suit you doesn't make them any less valid. Because that, it seems, is what the argument is entirely about; that you're entitled to, errr, "infringe" any OOP book that you want, just because you want it NOW

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You seem to be saying that since the current copyright duration is not perpetual, it is by definition "limited." While that is logically true, it is not necessarily legally true.

When the Constitution states a purpose for giving Congress a power, it is entirely reasonable to inquire whether the power is being exercised within the limitations stated. The Supreme Court will defer to Congress, but not abandon all judgment. The Constitution does not say "for such period as the Congress may determine." It says "for limited times." These two phrases do not have precisely the same meaning. The latter is more restrictive.

In interpreting what "for limited times" means, the courts will consider what the purpose of the Constitutional clause is. I say that since the purpose of the clause is to foster innovation, it is reasonable to conclude that the innovation that the Constitution is seeking to foster should happen sooner rather than later, in the present generation rather than in our grandchildren's. The entire purport of the clause is "faster, please." A limitation protecting many - indeed most - works for a century or more is not "fostering" innovation - it is retarding it. We'd be better off without the clause, interpreted your way, if the object is to foster innovation.

For those who want to read a very interesting article, written by a novelist, which touches on some of the things I have posted without delving into the legalities, check out The ecstasy of influence: A plagiarism By Jonathan Lethem at http://harpers.org/archive/2007/02/0081387