Copyright Is Only a Right for a Reason

Bach didn't need a record contract-or royalties- to inspire him.

When legislators make foolish laws, or courts enforce laws foolishly, they teach people to justify doing whatever they want. In particular, when teen-agers spend their formative years acquiring contempt for laws that are made by the ignorant at the behest of the selfish, I fear for the consequences when those young people become our next generation of leaders.

Thats why the battle between the record industry and the rest of the world is more than just an example of a business that doesnt understand its reason for being. And its also why we should wish Verizon well in its appeal of last months District Court ruling, which ordered that service provider to identify a user who may have engaged in file swapping.

At some point, someone has to go back to the source of congressional authority to grant patent and copyright protections in the first place—"to promote the progress of science and useful arts." Historian Garry Wills has observed that this clause in the Constitution is unique in that it states a reason—unlike the other clauses in Article I, Section 8, which merely grant the powers "to lay and collect taxes ... to coin money ... to establish Post Offices," and so on.

Compared with the tea-leaf reading that often takes place in the search for the Framers intentions, the clause on patents and copyrights is a neon sign. If the Framers had thought they were recognizing and protecting a property right, they either would have said so or could merely have said nothing more than "Congress can do this." Any demand for enforcement of copyright protections is therefore without foundation unless it offers a convincing connection to the promotion of scientific or artistic progress.

As I noted late last month when discussing this issue with CBS News, Bach didnt need a record contract—or royalties—to inspire him. He had a family to feed. The present-day business model of the record companies is a temporary artifact of a transitional stage in a developing technology.

Those companies need to find new ways to add value, rather than demanding that legislators help them subtract it at the expense of technical progress and individual rights.

Tell me what you call progress at