Julian Sanchez header image 2

photos by Lara Shipley

Heller and Copyright

July 1st, 2008 · No Comments

I can see why Mike Masnick is worried about the implications of the Heller decision for copyright jurisprudence, but in the unlikely event the Supreme Court did show some inclination to reign in transparent rent-seeking by content producers, I think they’d have ample grounds for distinguishing. Here’s the text of the Copyright Clause:

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;

and of the Second Amendment:

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Two things. First, the structure of the two prefatory clauses hereĀ  is actually slightly different. One is “Congress shall have the power to do X, by means Y.” The other is “X being the case, Y.” That is to say, in the Copyright Clause, just as a first pass reading, the “promote progress” is internal to the power grant: It doesn’t say that Congress can grant exclusive rights, since the progress of the arts and sciences is important. It says Congress may act to promote the progress of the arts and sciences by means of exclusive, limited-time monopolies on creative works. A genuinely parallel construction would be something like: “Congress shall not compromise the ability of the militia to defend the security of a free people by infringing the right to bear arms.” It may sound nitpicky, but it is a real difference in the wording.

Second, and to some extent despite what I just wrote, you can be too textualist for your own good. You can’t just proclaim the death of the author and read these clauses as self-contained texts; on any plausible theory of jurisprudence you need to bring in some sense of how the terms were understood at the time they were written. So just as “misdemeanors” in the impeachment clause doesn’t refer to jaywalking or smoking a doobie, “militia” in the Second Amendment was understood as encompassing the whole of the citizenry capable of bearing arms, not some select uniformed group. Hence the use of “the people” in the operative clause, and not “members of state militias.” As a rule, the Framers were pretty good about saying “the people” when they meant “the people” and saying something else when the meant something else.

Tags: Law


       

 

0 responses so far ↓

  • There are no comments yet...Kick things off by filling out the form below.

Leave a Comment