Posted by: bridget | 4 April 2007

Copyrights and the Constitution

As a previous post garnered so many comments and a friendly blog-war, the relevant issues of copyright law, Constitutional law, and the public good will be addressed here.

First of all, Hydralisk cited a paper by a Prof. Besser of UCLA’s School of Education and Information. Prof. Besser blatantly mis-quoted the Constitution and stated that Art. I, Sec. 8 reads, “The Congress shall have power …to provide for the … general welfare of the United States 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; [emphasis added].

Problem is, the “general welfare of the United States” language is not in Art. I, Sec. 8, Cl. 8 (the copyright/patent clause) but is found buried in Art. I, Sec. 8, Cl. 1 amongst the common defence. The actual text of Cl. 8 reads: “[The Congress shall have the power to provide for… ]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….”

Art. I, Sec. 8 starts off my enumerating Congressional powers. You need to imply “The Congress shall provide for” before each successive clause. You may not, however, import parts of one clause into parts of another clause, as did Prof. Besser. The “general welfare” language is found in Art. I, Sec. 8, Cl. 1: “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.” [Emphasis added.] There are six more clauses before the IP clause.

More, after the jump:

As stated on Hydralisk’s blog, Prof. Besser ought to be fired for such academic dishonesty. It is the equivalent of omitting a “not” in a quote and pretending that the meaning remains intact. Absolutely disgusting and the height of intellectual dishonesty.

Obviously, then, the Framers intended that copyright law and patent law be used to promote the progress of sciences and useful arts, respectively. Congress’s promotion of the public good is in respect to paying the debts of and providing defence for America.

Now that Prof. Besser’s ridiculousness has been attended to, there is the issue of copyright law and fair use. Everyone throws about those terms without knowing much about them.

The entire US copyright law (Title 17) may be found here.

Sec. 102 states that, inter alia, literary works are protected. Sec. 104(a) states: “Unpublished Works.—The works specified by sections 102 and 103, while unpublished, are subject to protection under this title without regard to the nationality or domicile of the author.” (The last clause is part of the Berne Convention: signatories may not discriminate against domiciliaries of other countries.) Sec. 104(b) states that a published work is protectable if, inter alia, on the date of publication, one or more of the authors is a US citizen.

“Published” is defined in Sec. 101 as, “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.”

Therefore, one may have copyright protection without offering to sell a work; the protection arises from the act of creation of the work. We can determine that the work of a students (or a blogger) is protected from the moment of its making.

There then comes the question of the protections granted by a copyright. Property rights (including IP) are negative rights: they are the right to exclude a person from use (not the right to use, per se). Sec. 106 elucidates the nature of the rights granted: “Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”

Reproduction, transmission, and distribution are all exclusive rights of the author. (Note that terms are all defined in Sec. 101.)

Sec. 107 through 122 provide limitations on those rights. Fair use provides that, “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

Unpublished works are protected under fair use. Now, the important thing to remember about fair use is that it is an affirmative defence to infringement: the infringer must prove, by a preponderance of evidence, that his use of the work is a fair use. The author need not prove all factors. In the instance of students who are suing an anti-plagiarism internet service (oh, the irony of an anti-plagiarism service that infringes copyrights!), the intention of the service is not educational (in the sense of Xeroxing an article for students to read) or scholastic.

The students clearly win on three of the four counts: nature of the work being creative, as opposed to, say, a telephone directory; wholesale archiving and reproduction of the work instead of segments; and commercial use that is not scholastic but relies entirely upon infringement, without additional creative enterprise.

The issue is how the infringing use will bar the students from later exploitation of their work. Arguably, such a service would prevent them from re-using portions of their work to develop into a longer thesis, research project, or publication. Also, the potential for infringement is massive: these students who would have given a single hard copy to a teacher now have their work all over the internet. A hacker or rogue employee could easily steal the best works and commandeer them for himself. Considering the value placed on research – such as on college applications, in graduate school, for a thesis, or for a professorship – it is quite difficult to argue that super-bright students will not be hurt by having their academic work published before they are ready for it to be so.

Other sections provide further exceptions to copyright protections. Sec. 108 allows libraries to archive work (which would seem to be applicable here); however, it must be done without direct or indirect commercial advantage. (Note that copyright law protects the commercial interests of the author while remediating the market failure that comes from others taking commercial advantage of work on which they did not expend the effort to create.) Every other exception (Sec. 108 to 122) deal with other works – sound recordings, performances, or visual works. Generally, those sections allow people to tape a song that they hear on the radio without being sued for copyright infringement.

It could not be more clear that the law, as it stands now, protects students against anti-plagiarism companies. If the companies cannot operate in a lawful manner (such as by securing the consent of students who submit works, not archiving the works of non-consenting students, and alerting professors to the same), they should not be permitted to operate at all.

Prof. Besser’s cut-and-paste ransom note Constitutional constructions aside, copyright law does not exist to protect the ephemeral public good.  The “public good” is an incidental benefit to the real rationale: to prevent the market failure by which a free-rider merely copies work that was produced by another.  The production of original work – whether an invention, a screen play, or an academic paper – requires substantially more effort than its copying.  Without intellectual property law, free-riders would abound and discourage creativity.  Exceptions to copyright law are narrowly tailored to further those goals, not to undermine them.

Even if copyright law were written with the overarching goal of satisfying the public good, stripping students of their copyrights is not the solution.  Is it the public good to protect against plagiarism by all means necessary, even if students have fewer rights than other citizens, simply by virtue of being young? Is it the public good to punish the most talented, creative, and enterprising of young scholars by this system? The ones who stand to lose are not the mediocre students who do their work without much ingenuity; it is not the plagiarising students, who are generally caught so long as a professor is not utterly lazy; rather, it is the most talented and hard-working of people who lose rights that were gained by labour and intellect. That is utterly perverse. Perhaps this pachyderm read too much Ayn Rand, but she is pretty sure that a society that elevates the “public good” above intellectual property protection – especially when the “public good” hinders the best of society – is a society damned to collapse.

There are very good reasons for not legislating in the “public good” in a broad sense and even better reasons for not making exceptions for the public good that would strip an individual of his rights. We do not require an individual to bear the brunt of the costs for a social good. This moves us into the Fifth Amendment, which explicitly protects such individuals:

… nor shall any person … nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Private property includes intellectual property; the government cannot commandeer a patent without reimbursing the inventor for his works. Likewise, if the government* is taking copyrighted works for the public good, it is obligated to compensate each person who is stripped of part of his intellectual property.

*After Kelo v. New London, it is clear, sadly, that the government may seize private property and give it to another private party for its use. Compensation is still required.

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