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Unconstitutional License

By Ed Foster, Section Columns
Posted on Thu Feb 12, 2004 at 09:10:36 AM PDT
Like many observers, I have been perplexed by SCO's recent claims that free software's General Public License runs contrary to the U.S. Constitution. Did the Founding Fathers really think free software is a bad idea? But sources that purport to be close to the company, at least geographically, have now provided me with a little known record of the final proceedings of the Constitutional Convention. More detailed than those left us by Madison and others, it suggests that intellectual property rights weighed far more heavily on those great minds than we might have imagined:


Dr. Franklin. On the whole, Sir, I can not help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.

Mr. McBride, hitherto absent from the proceedings, rose to say he hoped it was as yet not too late to offer a minor amendment to Article, Section 8. Resolved --

The Congress shall have Power to promote the Profit Motive and the Progress of Science and useful Arts by securing to Authors and Inventors the exclusive Right to their respective Writings and Discoveries and by prohibiting the Distribution of Free Products, most particularly Free Soft Wares.

Mr. McBride. Gentlemen, it is my painful duty to inform you that there are rabble and malcontents who believe that soft wares must be free. No doubt this fact will be a source of outrage for you as much as it is for myself. The wayward opinions of such persons must not be allowed to prevail by those of us who understand that the motive of profit is the engine that ensures the progress of science.

Gov. Morris. Are we to take it that by soft wares, the honorable gentleman refers to linens and such? If so, the state of Pennsylvania most whole-heartedly agrees that such goods should not be offered without recompense. Indeed, tariffs and duties must be strictly applied whenever any article of this nature passes through our ports.

Mr. Hamilton expressed his anxiety that such goods could pass through the ports of the nation without proper levies being applied. Soft wares, he opined, might reasonably include paper goods and most especially printed documents.

Mr. Hamilton. Sirs, we must assure that seditious thoughts and ideas not be allowed to murder our fledgling federal government in its crib. I second the resolution, and add that a select group of electors be appointed by the several states to examine the copyrights of all soft wares to make most certain that they promote the progress of science and, indeed, the domestic tranquility.

Mr. Madison said he was troubled by the amendment, but he was advised by his colleagues from Virginia that it might be worthy of consideration should the convention consent to a slight alteration. Could not the prohibition on trafficking in free soft wares also guarantee that property of other forms not be made free? Tapestries and petticoats were not the form of property that was of great a concern to gentlemen of the South as ...

General Washington rose. Although his situation as President of the Convention had hitherto restrained him from offering his sentiments on questions depending in the House, yet he could not forbear expressing his wish that consideration of this and all further amendments cease so that the final draft might be put to a vote. Once enacted, the Constitution would allow for further amendments. If necessary, a whole Bill of Rights, including freedom from free soft wares, might be promulgated.

Whilst General Washington concluded his remarks, Dr. Franklin looked towards the President's Chair, at the back of which a rising sun happened to be painted. I have, said he, often and often in the course of the Session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the President without being able to tell whether it was rising or setting: But now at length I know that it is a rising and not a setting Sun, and I am even more certain that it is an exact replica of engravings of the rising Sun in my almanacs. I'm going to sue.

--------------------

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Unconstitutional License | 2 comments (2 topical) | Post A Comment
free software is unconstitutional[ Reply to This ] (none / 0) (#1)
by Anonymous User on Thu Feb 12, 2004 at 06:34:34 PM PDT

it seems to me that it wasn't all that long ago that the US government lost the case against Zimmerman (PGP) on a free speech basis - so there is consitutional protection for free software

[ Reply to This ]


Jefferson was against the monopoly[ Reply to This ] (none / 0) (#2)
by Anonymous User on Fri Feb 13, 2004 at 03:03:38 PM PDT

It is my understanding that Jefferson went along with the monopoly creating clause very reluctantly. In my opinion the monopolies currently granted copyright holders are unconstitutional because they do not support the stated aims of the Constitution (i.e. promotion of the sciences and useful arts). This is because ever since the 1976 act the extensions of copyright have gone on long after the death of a creator, changes to the copyright marking requirements have made it extremely difficult to ascertain the copyright status of a given work or secure permission to use it if under copyright, and the monopolies granted under copyright have been poorly designed and thought out.

Copyright extensions that last many decades after the death of a creator INHIBIT progress they do not promot it by either the creator during his lifetime or by others during and long afterwards. What value will be added to Felix the Cat when it finally emerges from copyright and will the public care? What value could be added to Star Trek or Casablanca or Stuart Little? We'll never know because by the time these works enter the public domain the public will have moved on.

Copyright marking requirements once served a valuable function. Since copyright was fairly simple (28 years plus another 28 years IF the creator was still alive AND requested it) you could simply look at the copyright date and discern whether a given item was under copyright in many instances. If the date was less than 56 years old you could contact the person whose name appeared next to the notice. They could then license the work or inform you that it had not been renewed and was thus in the public domain. If the markings were missing or wrong intentionally you lost the copyright. Thus people could actually use material in new compilations with a minimum of time, energy, and effort.

Finally, the exclusive rights granted a copyright holder overlap and can be granted separately, thus further inhibiting the use of copyrighted material while under copyright. Note that MIT was unable to implement a music listening service because the labrynthine maze of rights of the music confounded their rights provider, during the Napster trial RIAA executives told the judge they didn't know what titles belonged to them (exactly how were they distributing the royalties then?), the SCO cases illustrate the lack of understanding on the part of AT&T, Novell, and SCO as to just what rights they had, didn't have, and needed to carry out business functions.

I'd love to see the whole mess revisited with a proper balance struck between producers and consumers(or more properly future producers).

[ Reply to This ]



Unconstitutional License | 2 comments (2 topical) | Post A Comment
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