I enjoy your posts! They are well-thought-out!
Read it again:
_______________
Article I, Section 8, Clause 8 of the U.S. Constitution: The Congress shall have power...
To promote the progress of science and useful arts, by securing for limited
times to authors and inventors the exclusive right to their respective writings
and discoveries....
---------------
Your grammatical analysis is correct, and it's a nice point, but your conclusions (for example, that a writing need only be original to be protected by copyright) are not logically necessary from the grammar and meaning of the words. It is one of many possible logically consistent implementations of the words and it is the interpretation currently in effect. Do you like the law as it is?
As I'm sure you know, applications for patents are judged on criteria far more strict than mere originality, under powers derived from exactly the same language of the Constitution. As it has played out, patents are generally the system for promoting science while copyrights are generally the system for promoting useful arts, though there is some cross-play.
We as a nation should be debating what is useful (which you are now doing) and what is art (which would be another productive discusssion) and what sort of scheme promotes the useful arts, and develop a set of laws that first and foremost promotes the useful arts. That, undebatably, is what the framers intended.
It is reasonable to be wary, as you are, of the government making calls on individual works, but currently the government is through our legal copyright system sponsoring monopoly profits on hateful speech, pornography, writings on how to kill and torture people, etc, etc. etc., in the name of promoting the sciences and useful arts. And currently the government makes all sorts of determinations as to what types of art it will and will not sponsor through schools, museums, awards, grants, scholarships, etc. etc.
Free speech is one thing, and is to be defended to the death; state sponsorship ensuring high profits (through our legal system and resulting in overburdening our legal system) of huge companies disseminating worthless, hateful, gratuitously violent, pornographic and destructive information through our copyright system is something else altogether.
Protect the speech, yes; honor the speaker with a private monopoly, no.
Perhaps there could be a strong rebuttable presumption of artistic merit and usefulness in favor of the author, and the government could withhold a copyright for those works that were clearly and convincingly not useful and not art, even if they were original. Just as for patents, the determinations could be appealed up through the federal court system. I think it's a discussion worth having.
And as I say, if the government makes a mistake, it's not the end of the world. It's just a matter of allocation of a temporary state-sponsored monopoly over an individual work. The work could still be sold on the open market. The debate would be ongoing and useful and lively -- what is useful and what is art. I think it's time this nation reads the Constitution and has that discussion.
Think about it -- an original Van Gogh is not copyrighted but still holds its value pretty well.
Congress has broad (and under the Sony Betamax case and Constitutional law in general, as you say, permissive rather than restrictive) powers for the purposes of promoting the sciences and useful arts, and has gone badly astray from the purposes for which these powers were granted.
I am pleased, anyway, that you are aware of this language in the Constitution and are now thinking about what is useful and what is art.
Rob Babcock said:
I think your view presupposes that "useful arts" is another word for "science."
Art is useful in and of itself.
Certainly there'd be very few professional artists without copyright.
At any rate, my main disagreement is that your interpretation of the Constitution is predicated on a fallacy routinely used to undermine the 2nd Amendment; that is the misinterpretation of the rules of grammar.
If my interpretation is correct, then something merits copyright if it's original (or in the case of patent, sufficiently novel as to advance beyond any previous similar technologies). By granting everything that meets this criterion copyright you no longer need arbitrary and dangerous subjective rulings on what is "useful."
Although I bet that won't sit very well with AV_Phile...