Where did copyrights and patents come from?

I once asked an attorney, “Where did copyrights and patents come from? When did Congress pass the first legislation in these areas?” [1] He replied, “Dave, read our Constitution.” So I did, and here is what I learned.

All the laws related to copyrights and patents derive from Section 8 of the United States Constitution. .
Section 8 enumerates various powers. Here is Section 8:

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The Congress shall have power:

• to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

• To borrow money on the credit of the United States;

• To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

• To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

• To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

• To provide for the punishment of counterfeiting the securities and current coin of the United States;

• To establish post offices and post roads;

• 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;

• To constitute tribunals inferior to the Supreme Court;

• To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

• To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

• To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

• To provide and maintain a navy;

• To make rules for the government and regulation of the land and naval forces;

• To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

• To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

• To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;–And

• To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
  

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The key sentence is #8, cited further on in the Wikipedia article, Other powers of Congress:

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Congress may promote the progress of science and useful arts by granting copyrights and patents; though perpetual copyrights and patents are prohibited, the Supreme Court has ruled in Eldred v. Ashcroft (2003) that repeated extensions to the term of copyright do not constitute perpetual copyright; also note that this is the only power granted where the means to accomplish its stated purpose is specifically provided for. Courts inferior to the Supreme Court may be established by Congress.

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One view of this section is that the Founding Fathers, facing a deadlock due to an original plan to “Design it Until it Drops” (DUD), decided to put out the Constitution Release 1.0 with a list of enumerated powers to be sorted out later. It is interesting and amusing, though not too insightful, to wonder how they picked the order in which the powers were enumerated. [2]

So the ideas of copyrights and patents so central to all discussion of open-source licensing issues date to a single sentence, one that says Congress may promote the progress of science and useful arts.

The Founding Fathers left it up to Congress to sort this out. For example, my daughter Jennifer just graduated from Yale and during her years there I took off an occasional day to visit some of her classes. [3] This last Spring I sat in on a section of a course on the Constitution taught by Prof. Akhill Reed Amar, a recognized expert who is the author of “America’s Constitution: A Biography.” (I bought a copy before attending the class and he graciously signed it for me after the class.) His book runs to 654 pages. The index lists the same three pages (108, 111, 112) for copyrights and patents. Page 108 says, “…just as continental standards for copyrights and patents would create a broad New World market for authors and inventors.” Page 111 says, “The monarch had also enjoyed various powers over naturalization, weights, and measures, patents, copyrights, and coinds that, as we have seen, Article I vested in the legislative branch.” Page 112 says, “the framers at times tried to specify the purpose of a particular power. Patents and copyrights could not be given merely to reward political allies, but only to ‘promote the Progress of Science and useful Arts.'” And that is it — just three sentences in a book of 654 pages

My reading of this is that copyrights and patents were to be legislated by Congress in the public arena, if “full public view,” by legislators, experts, lobbyists, special interests, concerned citizens, and anyone interested. In short, to say copyrights or patents are “evil” is to say that stop signs are “evil.” The copyright and patent laws –and all the institutions supporting them — are but the result of the collective efforts of our legislators, as are the traffic laws that give a policeman the right to give us a ticket if we ignore a “stop” sign.

Fundamental to both copyrights and patents is the notion of “intellectual property”. See Intellectual property. One view of “intellectual property” is that it is the value created in the form of a copyright and patent that is protected by the copyright and patent legislations. It is no more, or no less, “evil” or “good” than the notion of patents and copyrights themselves.

Notes:

1. The attorney is the attorney who was on the conference call with Bruce Perens mentioned in Jikes Archives, in the Jikes Coupon post. He is also the attorney “I” mentioned in the post Which non-existent computer company was almost founded by two IBM IP attorneys?.

2. For example,

• Taxes, commerce, immigration, counterfeiting and the post office all come before copyrights and patents.
• The army, navy, militias, declaring war, and piracy all come after copyrights and patents. Are IP attorneys more important than generals and admirals? (I suspect they think they are.)
• Since the post office comes before copyrights and patents, are mailmen more important than IP attorneys? Than generals and admirals?

3. I wish I had sat in on more classes. The same day I attended Amar’s class on the Constitution I also sat in on a class about the Civil War. The professor gave an wonderful explanation of the Emancipation Proclamation using contemporary materials such as letters as his primary materials.

Copyright (c) 2006 by David Shields. Licensed under the Apache License 2.0.

The Emergency Capacity Building Project IT Requirements Publications

The work that has resulted in the formation of the Open-Source Volunteers project began as an effort to assist in the development of open-source tools and packages to assist in humanitarian assistance and disaster relief, notably in support for the Sahana project described in previous posts. In order to bring myself up to speed in this area I read just over 1500 posts to the humanitarian-ict list back in June and published what I called an “e-mail sampler” in the ReliefSource wiki.

On the main lessons I learned in reading all those posts was that an exceptional group with diverse skills had come together to address this issue and there was a lot of information buried in the posts that reflect the participant’s expertise.

I recently learned of a new report that makes it much easier to “get up to speed.” It was primarily the work of Paul Currion and was done as part of The Emergency Capacity Building (ECB) project. According to their web site:

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The Emergency Capacity Building Project (ECB) is a collaborative effort of seven humanitarian agencies that are jointly tackling common problems in emergency response and preparedness.

In 2003, Oxfam-GB, Save the Children-US, World Vision International, Catholic Relief Services, the International Rescue Committee, CARE International, and Mercy Corps formed the

An assessment of the agencies’ emergency response capabilities in 2004 identified four main areas where collaboration would be highly beneficial. With a grant from The Bill & Melinda Gates Foundation, and, later from Microsoft Corporation, these areas formed the basis of the Emergency Capacity Building Project.

Starting in March 2005, the IWG is using this funding over a two-year period to leverage the agencies’ substantial resources – $3 billion annually for programs carried out in over 100 countries with 50,000 staff members – to build their capacity for emergency response.

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The project has recently published several reports on Information and Technology Requirements for emergency response. This is a detailed, comprehensive study that is very well-written survey that provides an excellent introduction to the challenges and opportunities in this area.
The reports include

• NetHope Disaster Relief Whitepaper
• Information and Technology Requirements Assessment: Global Response
• Information and Technology Requirements Assessment: Pakistan Response
• Information and Technology Requirements Assessment: Darfur Response
• Icon Information and Technology Requirements Assessment: Global Response (no appendices)
• Information and Technology Requirements Assessment: Pakistan Response (no appendices)
• Information and Technology Requirements Assessment: Darfur Response (no appendices)
• Icon Information and Technology Requirements Assessment: Findings and Recommendations
• Information and Technology Requirements Assessment: Key Findings

Copyright (c) 2006 by David Shields. Licensed under the Apache License 2.0.

Norman Salsitz, 86, Author Who Survived the Holocaust, Dies

A central theme of these writings is the notion of Open Source Volunteerism, enlisting volunteers with skills in open-source technology to use their skills to help make the world a better place.

There are many kinds of voluntary activities, but none is more noble than that of a person who voluntarily risks their own life so they can preserve the lives of others. The New York Times published an obituary on October 14th written by Dennis Hevesi about such an individual, a man named Norman Salsitz. Here is what is says in part:

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Norman Salsitz, whose harrowing tale of surviving the Holocaust by posing as a Christian took a particularly bizarre turn when he killed Polish partisans who were about to murder a group of Jews, died Wednesday in Boston. He was 86 and lived in Springfield, N.J.

With his wife, Amalie Petranker Salsitz, who died in 2003, Mr. Salsitz wrote “Against All Odds” (Holocaust Library, 1990), an account of how, following different paths, they pretended to be Christians to stay out of the death camps.

With a certificate of baptism given to him by a priest in his small hometown in southeast Poland, Mr. Salsitz joined the Polish underground to fight the Nazis, though well aware of the virulent anti-Semitism among the partisan ranks. In March 1944, when a group from his unit was organized to go to a nearby farm where a Jewish family was hiding, Mr. Salsitz volunteered for the mission. At the farm, Mr. Salsitz turned his rifle on his squad.

He then fled to the east and joined Russian forces as they fought to oust the Nazis from Krakow. There, in another strange twist, he met his future wife.

Mrs. Salsitz, although Jewish, had managed to be hired as the assistant to the head of a German construction company operating in Krakow. As the Nazis prepared to flee, they ordered the company to blow up the city’s most important buildings.

“The Germans mined all the beautiful, historic buildings of Krakow,” said Amy Hill Hearth, the author of another book about Mr. and Mrs. Salsitz, “In a World Gone Mad,” (Abingdon Press, 2001). “Here was this beautiful Jewish girl who spoke fluent German and was masquerading as a Christian and had earned the trust of the company that was ready to blow up the city.”

When the company officers fled, Mrs. Salsitz volunteered to stay and relay the telephone order to set off the bombs — with no intention of doing so.

Mr. Salsitz, meanwhile, had received a tip from the underground about the plan and went to find the German girl at the construction office.

“So he gets there, and he’s ready to kill her, and she speaks to him in Hebrew,” Ms. Hearth said.

The Salsitzes married in 1947, then emigrated to the United States.

While in the Polish underground, Mr. Salsitz saved many Jews, Ms. Hearth said.

“He was living not just a double life, but a triple life,” she said, “masquerading as a Christian, but also working for the underground while protecting Jewish families any way he could from not just the Germans, but people in the underground who were anti-Jewish.”

Mr. Salsitz also saved hundreds of pictures of Jews.

“Any time he found a Jewish home that had been ransacked,” Ms. Hearth said, “he collected the photographs and hid them in barns and attics.”

Mr. Salsitz donated more than 1,000 photographs to the United States Holocaust Memorial Museum in Washington. He wrote two other books, both published by Syracuse University Press: “A Jewish Boyhood in Poland” (1992), and “Three Homelands,” (2002).

In 1956, the Salsitz family moved from Brooklyn to New Jersey, where Mr. Salsitz became a home builder.

Mr. Salsitz, who had changed his name after coming to the United States, was born Naftali Saleschutz on May 6, 1920, in Kolbuszowa, Poland, the youngest of nine children of Isak and Esther Saleschutz. Except for one brother, his entire family was killed in the Holocaust. He is survived by his daughter and three grandchildren.

In June 1941, after the Nazis occupied his town, Mr. Salsitz was forced into a slave labor battalion, but not before watching his father being shot to death.

“He heard his father scream, ‘Revenge, revenge!’ ” his daughter said. “And that was my father’s mission.”

In August 1942, Mr. Salsitz and 55 other slave laborers escaped into the woods, where they lived in underground bunkers. Later, he joined the Polish underground.

In 2003, Mr. Salsitz returned to Poland for the first time, accompanied by his daughter and a Polish-German film crew making a documentary about him. Upon entering his small house in Kolbuszowa, he said later, “I looked for my sisters in every room.”

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Norman Salsitz — May His Memory Be A Blessing.