Restoring Constitutional Copyright


The Constitution offers explicit instructions on the purpose of copyrights and patents: to promote the "progress" of the "sciences and the useful arts." Of the 18 enumerated powers granted to Congress, this is the only power with a specific purpose. In November reason asked Yale Law Fellow Derek Khanna, who writes frequently about intellectual property, for three reforms that could help restore constitutional copyright law:

  1. Shorten copyright terms. The Constitution says copyright must be for "Limited Times." For the founders, it was 14 years. Today, copyright is life of the author plus 70 years. But since copyrights have been extended every 20 years, it is effectively infinite copyright, which is unconstitutional.
  2. Reform or remove statutory damages. Because modern copyright applies to every text and email you send, it's likely every person has violated copyright. Have you ever forwarded an email without permission? You may be liable for up to $150,000 per infringement. Aside perhaps from wholesale piracy, there is no need for statutory damages. Instead, let plaintiffs prove actual damages and go from there.
  3. Legalize technologies. Under the Digital Millennium Copyright Act of 1998, many common technologies are made effectively illegal, subject to the decisions of the librarian of Congress. In January 2013 the librarian made it a felony, punishable by five years in prison, to unlock your phone. The librarian of Congress should not be empowered to ban jail-breaking and unlocking phones.