In Eldred, the Supreme Court ruled that copyright extension, or public domain depredation, is constitutional. To repeal or roll back extensions, then, or to restore the public domain, Marci Hamilton argues in the February 13 Writ that we must turn to legislation, voluntary industry restraint, or a constitutional amendment. But while all three are "uphill battles", Hamilton finds the most promise in a constitutional amendment. "The very philosophy of the Constitution is to expect, oppose, and correct the inevitable abuses of power. And over the years, the Copyright Clause has become a flashpoint for just such abuse. While it is corporate, not government, power that is being abused, it is an abuse of a power granted under the Constitution nonetheless. If the forces that already exist can become sufficiently organized to fight this battle, they will have fulfilled the Framers' highest ambitions."
(PS: By chance, or independently of my FOS interest, I've done a lot of work on the U.S. constitutional amending process and the strategies for adopting amendments. Primarily see this, but also this, this, and this. Here's one reason to doubt Hamilton's strategy. While copyright extremists have inspired wide, deep, and growing public opposition, this opposition will suffice for corrective legislation long before it suffices for a corrective amendment. Or at least this would be true if the legislative branch represented the people's will on this subject. But if Disney money makes that questionable, then here's an analogy that gives hope to the idea of an amendment. Copyright extremism is like Prohibition (the 18th Amendment) in at least this way: it is widely disobeyed and widely disapproved. Crackdowns that limit disobedience intensify disapproval. Enforcement perversely undermines respect for law. Might it be like Prohibition in a second way as well? Prohibition was repealed by constitutional amendment (the 21st) when the people finally asserted their will. If you wonder whether money has distorted the legislative process, then note one further point. The constitution (Article V) allows amendments to be ratified either by state legislatures or by state conventions specially called for the purpose. The rationale for the convention method is to permit constitutional change when the people suspect that the legislatures do not represent them fairly. It has been used only once in our history: to ratify the repeal of Prohibition. Proponents of repeal deliberately chose the convention method to show that Prohibition was adopted in the first place by extremists who didn't represent the people.)
Posted by
Peter Suber at 2/15/2003 02:54:00 PM.
The open access movement:
Putting peer-reviewed scientific and scholarly literature
on the internet. Making it available free of charge and
free of most copyright and licensing restrictions.
Removing the barriers to serious research.
