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December 27, 2012
David Post on Copyright and Originalism
Earlier this month David Post posted a commentary
(at Volokh Conspiracy) on a recent paper from conservative scholars who looked at the foundations of copyright law
The issue is one that has been raised here as well, for example in the comments to my entry on "What is the Patent Problem?" It has to do with what we believe the founders and authors of the Constitution thought they were doing when they established Congressional authority in Article 1 Section 8.
Post says (and I agree wholeheartedly) that the authors of this report are wrong on historical ground, and wrong on the merits. He notes that there's literature and scholarship on this question and in general there's Constitutional scholarship that shows what the framers intended was that the Constitution embodied a grant of rights from the people (as represented in the Convention) to the government. There's nothing to support a "natural rights" argument that I know of.
And, as I've said repeatedly in the past year, it's pretty clear that what Post calls the "utilitarian" analysis is also failing badly - IP as we currently practice it is inhibiting creation, not promoting it. The economic justifications made for the continual expansion of protectionist regimes are purely for the benefit of large corporations. Individual creators are trotted out regularly as excuses but when it comes to writing the checks the Cartel are nowhere to be found.
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