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As the framers realized, copyright and patents are critical to fostering innovation and culture.

Well, at least Jefferson was initially opposed to the idea, which he (rightly) viewed as a monopoly:

Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it… . That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.

Later he acquiesced, but with a much stricter proposal than what eventually was written in the Bill of Rights:

  Art. 9. Monopolies may be allowed to persons for their own productions in 
  literature and their own inventions in the arts for a term not exceeding — years
  but for no longer term and no other purpose.

I don't quite get the point of discussing or arguing about what the framers "meant". They're not God or something.

It may of course be useful in trying to understand how the current supreme court comes up with its decisions. I personally don't buy that law should be interpreted based on the "original intent" of a few dead persons, who had opinions about it.

Courts interpret the laws any way they want, that is the law, right? If they seem to get lost with it, then congress should change the laws so there is less room for mis-interpretation. What should matter is democracy now.

Well, there are two points.

First, we live in a constitutional democracy. The constitution is supposed to be the set of meta-rules which dictate how and what the government can do. Like it or not this turns out to come down to literary interpretation. There are two major schools of thought about how one should interpret literature, and I prefer the one that suggests the context in which something was written should be taken into consideration (the other school, which happens to dominate departments of English Literature, is kind of nutty).

You may think that constitutional democracy is a Bad Idea, in which case feel free to argue that point. But within that framework, we live by rules, and what those rules mean -- or more importantly, what people think they mean -- matters.

This kind of thinking is unappealing to programmers and engineers -- it's a concept generally known as "social construction". Our government is a social construct. So is money. So is bitcoin. So are mathematical proofs (!) -- at bottom, a mathematical proof is an argument that convinces mathematicians. If you don't want the FBI to shoot you, you might want to consider that having a shared understanding of the laws they believe they are enforcing is a Good Idea.

Second, it's interesting to realize that most of the stupid stuff happening today was anticipated, and the fine points argued over, by a group of smart guys over two hundred years ago. It's sad that the level of debate today comes down to arguing over what these guys meant by something, especially when most of those doing the arguing lack basic comprehension skills.

> the context in which something was written should be taken into consideration

Yes surely if we want to understand what they meant when they wrote their opinions. But those were just their opinions. They were not the law that was passed. A law is not an opinion. What is it? It is a text. Who interprets it? The Judges.

For a judge to say: "I rule this way because I think this is what Jefferson wanted" is a cop-out. It would be more honest for them to say: "I rule the law this way because I'm the one who interprets the law here".

Your argument is that law should be treated like a clean-room implementation with zero original context. The original interpretation is apparently meaningless. But interpretations by random judges are fine? And it's appropriate for these random decisions to become precedent?

I've never understood this mindset. It's treating the English language like machine code, as if it could be written with a degree of deterministic certainty. Our human language is littered with reasonable unwritten assumptions, words that slowly evolve, words that completely change meaning.

If we happen to know what the original authors of the bill meant with their words, why should we substitute their known interpretation with that of some random judge?

Is the American system really suffering from too much Jeffersonian-ism? I'd argue the opposite.

Hilariously, this is the rival school of thought in literary criticism. The author's intent doesn't matter.

@galaxyLogic:

Yes but judges are people, and their decisions are based on what they believe the rules they're enforcing mean, and they are interpreting those rules based on parsing the meaning according to their theory of how you comprehend text which, for most people, comes down to "am I understanding this sentence as the person who wrote it meant it?"

So if we want to predict, understand, or shape their decisions we are perforce interested in both what they currently think those rules mean and what and how we might persuade them differently. There is no cosmic law that will determine whether our idea of what is right will prevail -- we are a nation of humans and not cosmic laws.

Imagine you are a successful actor who is convinced that he does not need to pay income tax because he has read the constitution and according to his reading he does not need to pay income tax. Even if he is "correct" for some value of correct, it does him no good when the IRS shows up at the door.

I must amend that I do have a lot of respect for the wisdom of the framers and of the Constitution. Mostly I would say for the wisdom of the Constitution, because it does not matter much what they thought when they wrote it, does it?

Does it matter whether a person who writes a sign saying "enter at your own risk" means it as a joke or as a genuine warning?

Yes, if the original meaning is readily available to the reader.

I meant the question to be rhetorical! ;-)

I appreciate your points and they make me think much, so thank you. Apologies for everyone for being a off-topic already. Here's what I think at the moment:

Congress is the body that makes the laws. Not the judges. The current congress is responsible not only for the laws they passed, or didn't pass, but ALSO for all the laws they didn't update, or did not make unambiguous enough for the judges to interpret.

A judge of course can do what they will. But their job is to try to interpret what the CURRENT congress intends the laws to mean, NOT what some previous congress did. The first congress formed by the framers is just one of those.

This my opinion is not based on what I think the original framers thought would be good. My opinion is based on what I think would be good.

"A judge of course can do what they will. But their job is to try to interpret what the CURRENT congress intends the laws to mean, NOT what some previous congress did. The first congress formed by the framers is just one of those."

Judges in low level courts make decisions based on evidence and the law. Appeals courts take the constitution into account. The supreme court only considers the constitution (the facts of a case matter only insofar as to how the law is being considered).

In any event, a court will tend to place weight on the intentions of the people who wrote a law vs. the current congress. E.g. a law endorsing "gay parades" written in 1850 would be understood to mean something quite different from an identically worded law written in 1980.

> There are two major schools of thought about how one should interpret literature, and I prefer the one that suggests the context in which something was written should be taken into consideration (the other school, which happens to dominate departments of English Literature, is kind of nutty).

The Constitution is not literature, and this confuses the goals of law interpretation and literature interpretation.

When interpreting the law, we are trying to find the meaning of the law. The "author is dead" school of analysing literature has a different method not because they are nutty, but because they have a different goal: not to divine some true meaning of the text, but to understand the experience of reading the text -- something which is completely irrelevant to the law.

The only reason that anyone could think that a "textualist", context-free interpretation of the law makes sense is that the US was founded relatively recently. Older countries have no choice to deal with the fact that meanings change, and that the law makes no sense if we pretend it was written today.

> I don't quite get the point of discussing or arguing about what the framers "meant". They're not God or something.

Constitutions are social axioms. Without them, the laws float on the current of public opinion moderated only by a little bit of wisdom accumulated by legislators, judges, and law enforcement. Democracy without official limits on governmental power has long been considered a poor form of government.

Words that make up laws are not mathematical; to fill in the gaps in meanings of laws (the Constitution being the highest law), or to refine the application of a law, the intent of the lawmakers is looked at, and intent is usually determined by other writings by those lawmakers, and debate preceding the law's passage.

It takes a super-majority to change the constitution, which I applaud. Else some cosa-nostra could easily take over everything that protects the rights of minorities. Constitution is a way for all "minorities" to agree to such a basis for a society which doesn't burn itself up in continual civic unrest. And let's face it, we are all minorities one way or another. Red hair?

My point is not about whether we should have laws that need a super-majority to change them. It is about the type of arguments on why to change them or not. We shouldn't not change them because someone 200 years ago wouldn't have liked it. Even worse argumentation: We shouldn't change it because this is what I, me, the Judge of supreme court think they would have wanted me to do.

C'mon Supreme Judges, stop hiding behind the veil of history. Acknoweldge the responsibility you have for your OWN decisions.

We already see the pernicious effect of eviscerating all the meaning from words like "limited" in copyright and patent law. If you take the literal, almost mathematical, meaning of "limited" it places no practical limits on anything. Limited now means the opposite. That's obviously a ridiculous and evil outcome.

Similarly the words "necessary and proper" have lost any power because lawyers have argued them into submission.

The role of judges should be not to improvise on the basis of this evacuation of meaning, but to assign a reasonable meaning, based at least in part on supporting documents that show what the authors of those words had in mind.

> It takes a super-majority to change the constitution, which I applaud.

Except for when Judges decide they want it to mean something else now. That is why original intent matters.

> I don't quite get the point of discussing or arguing about what the framers "meant".

It's pretty important to one extremely common justification for the government's authority, that being the "social contract." As the justification goes, the reason that authority is legitimate is that we have agreed to it. When you point out that, no, in fact no living person has agreed to any such thing or even been given the opportunity to do so, the response is that people in the past agreed explicitly to the Constitution, via their elected representatives in each state that ratified it.

If you accept this justification (you can probably tell by my tone that I don't), it ought to be pretty important what was agreed to, and the only remotely plausible way to interpret the terms of a supposed contract is as the parties to the contract intended.

While I'm aware that discussing the framers' intent is common when arguing constitutional law, that wasn't my intent at all. I posted it as a piece of historical information that contrasted with the previous statement about the framers' thoughts on the issue, and because I think Jefferson was a smart guy who thought about these things and his arguments can be useful when forming our own opinion.

Because once upon a time people agreed with them and that support lead to law. So it's important for us to attempt to understand exactly WHAT they were agreeing too, and why, and to uphold that. IMHO our interpretations of laws should NOT change. We need to maintain the interpretations and come up with new laws if sentiment changes.

> As the constitution's framers realized, copyright and patents are critical to fostering innovation and culture.

Well.... I don't think anyone around that time was seriously thinking about patent law and innovation in that capacity. "Well we have a new country, and handing out patents is just one of those things you're expected to do." Even the Soviet Union had a patent system, and they're the last group you'd expect to sign up for the idea of patents. And yet here you go: http://patentdb.su/

The modern patent system goes back to the 1600s when some boring king made some annoying promises that he had to compromise on:

By the 16th century, the English Crown would habitually grant letters patent for monopolies to favoured persons (or people who were prepared to pay for them).[13] This power was used to raise money for the Crown, and was widely abused, as the Crown granted patents in respect of all sorts of common goods (salt, for example). Consequently, the Court began to limit the circumstances in which they could be granted. After public outcry, James I of England was forced to revoke all existing monopolies and declare that they were only to be used for "projects of new invention". This was incorporated into the Statute of Monopolies in which Parliament restricted the Crown's power explicitly so that the King could only issue letters patent to the inventors or introducers of original inventions for a fixed number of years. It also voided all existing monopolies and dispensations with [some] exception[s]....

above quote's background: http://en.wikipedia.org/wiki/History_of_patent_law

fun paper: http://diyhpl.us/~bryan/papers2/Generally%20inconvenient:%20...

This paper is mostly about how a law came about regarding "projects of new invention" as a political compromise, rather than any particular thought or study about the problem of incentives and innovation.

Well.... I don't think anyone around that time was seriously thinking about patent law and innovation in that capacity.

Read my sibling comment. Jefferson, at least, clearly didn't take patents for granted.

> One of the most tragic ideas to evolve in this century is the idea of "intellectual property"--that you can own an idea for years, sometimes tens or hundreds of years.

(1) Intellectual property protections didn't originate in the twentieth century. In the U.S., they exist in the original text of the Constitution (https://en.wikipedia.org/wiki/Copyright_Clause), and they existed in other countries well before then.

(2) Copyright doesn't protect ideas (https://en.wikipedia.org/wiki/Idea%E2%80%93expression_divide). The ideas underlying copyrighted works can be freely copied.

Of course, the duration of copyright protection has gotten completely out of control. But I think that should be attributed to the ability of copyright lobbyists to influence lawmakers, rather than to the idea of intellectual property itself.

...rather than to the idea of intellectual property itself.

Whereas ISTM the current regime is inevitable, given the existence of "IP" and the legislative means to modify it. It is a money-printing machine for lawyers and executives. If we can be certain of anything, it is that future generations will be plagued by yet more oppressive incarnations of this folly.

EDIT: If "A -> B" and "B is Bad", then "A is Bad".

I can't tell if you agree or disagree. If current IP regimes are bad, that doesn't prove that IP itself is bad.

You're right that the problem is more with the length of terms and abuse of the concept rather than the concept itself.

Most people break copyright all the time and would be rather upset if they knew the full extent of the copyright law. Since selective enforcement occurs, only a few people come to know the true tyranny of the copyright regime, and the public is easily persuaded to allow extensions of the monopoly by fear-mongerers who say "You don't want to see your favorite Disney characters in filthy, compromising positions, do you?! Call your representative now and tell him to protect your childhood!" [1].

"The best way to get a bad law repealed is to enforce it strictly".

[1] https://en.wikipedia.org/w/index.php?title=The_Disneyland_Me...

I don't think copyright law implies that "ideas" can not be copied. I think it says something about the "expression of an idea". It is always up to the court to decide whether copying was "substantial" and not "fair use".

I agree that both laws and their application have gone too far. I think they should be reformed, not thrown out all together.

There's a third law less often opinioned about: Trade Secrets. Is that a just law or not? Well think about the laws on privacy. Should we have the right to "privacy", which is really a rather intangible thing?