N.E. Brigand Posted April 28, 2016 Share Posted April 28, 2016 And this also shows the difference in the way the Constitution is viewed today by originalists vs. those who adhere to the living and breathing concept. The various writings of Madison indicate that he was likely the leader of those concerned about listing individual rights within the Constitution; and he/they also contended that those rights are automatically provided to us by our Creator. So to understand the original meaning of the term Rights within the Articles, as well as the first Ten Amendments, they should be viewed as much as possible by associating them with other writings from Madison. Thus Article 1 Section 8 (when viewed in that originalist manner) articulates that an Exclusive Right comes into existence at the point a writing is penned by the artist, but it is left up to congress to define just how long that Right can remain Exclusive. However, I concede that there are plenty of Living and Breathing interpreters who will balk at this belief. Well, there are originalists, and then there are originalists. Arguably you need to know what each legislator voting in the affirmative in each state legislature that ratified the Constitution (or later, any given amendment) thought about it. Just because Madison thought a particular phrase meant X needn't have precluded the people who actually voted for it from thinking that phrase meant Y. Quote Link to comment Share on other sites More sharing options...
skevinp Posted April 28, 2016 Share Posted April 28, 2016 Oh how I enjoy digging into the minutiae! This is fun, at least for me. And this also shows the difference in the way the Constitution is viewed today by originalists vs. those who adhere to the living and breathing concept. The various writings of Madison indicate that he was likely the leader of those concerned about listing individual rights within the Constitution; and he/they also contended that those rights are automatically provided to us by our Creator. So to understand the original meaning of the term Rights within the Articles, as well as the first Ten Amendments, they should be viewed as much as possible by associating them with other writings from Madison. Thus Article 1 Section 8 (when viewed in that originalist manner) articulates that the Right itself comes into existence at the point a writing is penned by the artist, but it is left up to congress to define just how long that Right can remain Exclusive. However, I concede that there are plenty of Living and Breathing interpreters who will balk at this belief. I wasn't so much espousing a philosophy as I was contemplating the fact that patent rights, which come from the same clause of the Constitution, are certainly not automatically granted upon invention. You still have to obtain a patent, which takes a lot of effort, money and time. So I don't think the automatic nature of copyright rights can be ascribed to the Constitution alone. Quote Link to comment Share on other sites More sharing options...
Stu Posted April 28, 2016 Share Posted April 28, 2016 Well, there are originalists, and then there are originalists. Arguably you need to know what each legislator voting in the affirmative in each state legislature that ratified the Constitution (or later, any given amendment) thought about it. Just because Madison thought a particular phrase meant X needn't have precluded the people who actually voted for it from thinking that phrase meant Y. The final draft of the Constitution was a huge, really huge compromise that came about due to being hotly debated by two differing viewpoints: the Federalists and the Ant-Federalists. And even within each of those camps there were internal disagreements. And part of that compromise is reflected in this particular portion of the Article at hand. It is the recognition that individual rights actually exist for the writings and discoveries of artists and scientists (what Madison the Federalist wanted), but also a recognition that those rights should have a limit of exclusivity to help thwart perpetual monopolies (what Jefferson the anti-federalist wanted). The Constitution also indicates in other areas that individual Rights can be taken away by due process; and the Tenth Amendment maintains that what is not enumerated within the Constitution is left up to the States to decide. And those compromises allowed the States to agree on ratification in a rather quick manner. Quote Link to comment Share on other sites More sharing options...
Stu Posted April 28, 2016 Share Posted April 28, 2016 (edited) I wasn't so much espousing a philosophy as I was contemplating the fact that patent rights, which come from the same clause of the Constitution, are certainly not automatically granted upon invention. You still have to obtain a patent, which takes a lot of effort, money and time. So I don't think the automatic nature of copyright rights can be ascribed to the Constitution alone. A 'Patent' is a legal tool that came about in order for a person to be able to prove in a court of law that they really own the creative invention in which they claim to own. The recognition that a person who invents something has the ‘Right' to actually own a creative Invention is what the Constitution establishes. Edited April 28, 2016 by Stu Quote Link to comment Share on other sites More sharing options...
skevinp Posted April 28, 2016 Share Posted April 28, 2016 A 'Patent' is a legal tool that came about in order for a person to be able to prove in a court of law that they really own the creative invention in which they claim to own. The recognition that a person who invents something has the Right' to actually own a creative Invention is what the Constitution establishes. Never mind. I thought you were using the term "right" in a different sense when you spoke of "granting ownership" to the original composer. Quote Link to comment Share on other sites More sharing options...
Stu Posted April 28, 2016 Share Posted April 28, 2016 Never mind. I thought you were using the term "right" in a different sense when you spoke of "granting ownership" to the original composer. My fault; I should have been more careful with the word 'grant'. Especially since we are discussing the meaning of words Quote Link to comment Share on other sites More sharing options...
skevinp Posted April 28, 2016 Share Posted April 28, 2016 My fault; I should have been more careful with the word 'grant'. Especially since we are discussing the meaning of words No problem. And you are right, I'll grant you that. Quote Link to comment Share on other sites More sharing options...
Stu Posted April 28, 2016 Share Posted April 28, 2016 (edited) For those still reading this thread, try this experiment that I have my students do from time to time: Read out loud the passage in Article 1 Section 8 concerning Science and Arts. Emphasize just the word Right; then read it out loud again and emphasize just the word ‘exclusive’; then read it out loud again and emphasize both words. The entire context of the paragraph within the three readings change!!! So how do we know from just reading the passage what word or words to emphasize in order to get the meaning as close as we can to what the Founders intended? We really have to read as many writings as we can find that were penned by the Founding Fathers, and read them through their belief structure of Enlightenment not any other philosophy, in order to determine the most likely context that they meant when they wrote the words. I admit that I am a layman; a very interested layman, but a layman nonetheless as it applies to Constitutional meaning. However, after reading, and studying, hundreds and hundreds of Founding Father documents over the past 40 some odd years, and studying the philosophy of Enlightenment, I have found most of the Founding Fathers had the common belief that Rights were automatically conferred by the Creator; but there was intense debate on how long those Rights would remain ‘exclusive’ to the individual. So within a compromise passage like this one in Article 1 Section 8, realizing that the debate was about preventing perpetually corrupt monopolies while most all agreed on the Right itself, the contextual emphasis was likely on the word ‘exclusive’ as it applies to the time a person can keep that Right 'exclusive'. Do I really know (exactly) what they meant to emphasize, nope; but neither do those who sit on high-chairs wearing the black bibs. But I choose to adhere to the experts who do their best to interpret our Founding documents via originalism, as opposed to believing experts who interpret the same documents based on massaging the words into modern whim-type, evolving, and ever changing cultural meanings. Edited April 28, 2016 by Stu Quote Link to comment Share on other sites More sharing options...
Stu Posted April 28, 2016 Share Posted April 28, 2016 (edited) No problem. And you are right, I'll grant you that. Nice play on words. Aren’t you the clever one!!! Edited April 28, 2016 by Stu Quote Link to comment Share on other sites More sharing options...
perc2100 Posted April 30, 2016 Share Posted April 30, 2016 https://semichorus.wordpress.com/2016/04/21/bhs-music-department-being-sued-for-copyright-infringement/Speaking of Tresona being unhappy with (and suing) a large choral group: So here ya go, all doubters of legality of licensing, let's see how this plays out: a non-profit scholastic program who brazenly didn't feel the need to pay any licensing fees getting sued Quote Link to comment Share on other sites More sharing options...
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