(Manually) reblogged from Copyhype
Since copyright is a legal doctrine, much of what is written about it is by lawyers, jurists, and legal scholars — not historians. Lawyers are advocates, and thus, more often than not, use history more as a tool for arguing a particular interpretation of a legal doctrine . . .
It seems to me that there are two general purposes to this historical revisionism. One is an appeal to nostalgia . . .
The second is a legal argument: copyright skeptics disagree with the choices Congress has made in shaping copyright law. Perceiving a lack of power to influence Congress, they play the trump card: the Constitution. If you can successfully argue that the language or intent of the Copyright Clause constitutionally limits what Congress can do, then you can get a court to strike down those parts of copyright law you disagree with without having to go through that pesky legislative process.
Check out the rest of this thought-provoking post here.
Two notes. The first concerns rhetorics. I don’t believe copyright lawyers, jurists, and scholars — skeptics or not — think of the legislative process as “pesky”. Expensive, inefficient, hijacked, and even corrupt, yes. Pesky, no. Inconsequential things are pesky; copyright laws are serious matters with great economic consequence.
Second, I would caution against taking for granted that “the legislative process”embodies what people actually want. What the proverbial “will of the people” is on a topic like copyright may be difficult to gauge since the average, reasonable person probably spends little to no time thinking about copyright. Nonetheless, the law, interpretative legal cases and scholarship must take care to diverge not too far from what people intuitively think they should be allowed to do with intellectual property. Otherwise, law makers, lawyers, jurists, and legal scholars risk becoming irrelevant no matter who can wield history as the sharpest stick.