Crybaby Artists

Listening to the Statists, you’d think Congress was trying to make art illegal, or kill babies in their sleep.

The Constitutional provisions for copyright were designed to protect the public domain, but allow some provisions for a temporary monopoly for personal profit.

Today, the public domain has for all intents and purposes been eliminated. This quiet death was hailed by vested interests, and in perfect 1984 fashion the common idea of copyright protection has been altered to its opposite.

Now the dialog is waterlogged with fear. It’s about about “protecting” businesses (all artists are businesses) from their customers. This “war is peace, peace is war” inversion has reinforced a sense of entitlement among artists. My fellow artists tend to embrace statism, so this is no great surprise.

I’ve followed copyright law closely over the last couple of decades, watching the Federally-granted monopoly grow stronger each step of the way.

The stranglehold has gone past obvious and become onerous, and it’s nice to see Congress make a token effort to undo some of the mess that it’s made with the “Orphan Works” bill.

Nick Anderson gives a list of reasons how the bill would “end that exclusive right”, which is disappointingly full of holes. Seriously, Nick, under the current rules you can’t (for example) “assure a client that your work hasn’t been — or won’t be — infringed”. One counter example strips this assertion of substance. Can’t you put up a credible argument against the bill?

But, if bad logic is too ho-hum, in the comments a person by the name of Katryna flew off the handle, screaming (in bold) “You’re obviously not an artist so you shouldn’t even PRETEND to try to speak about what we do and don’t DESERVE”

I dislike narrow-minded, fearful artists like this giving the rest of us a bad name.

The current draconian, monopolistic system was desired by big corporations that in many cases used their lawyers to steal from artists in the first place. Piece by piece Congress destroyed the public domain. (Am I the only one who thinks it ironic that one of the most rabid companies is Disney, who relied on the public domain in engineering their early success?)

It’s too bad those artists who live in fear of being “stolen from” have no idea how important the public domain has been to art. Now it’s been gone for decades and shows no signs of coming back.

Is this legislation flawed? Sure. But I’d rather have a flawed step in the right direction rather than wait for a sighting of that legal Sasquatch known as the “flawless bill”.

My fellow artists! Stop worshiping your works! If “stuff” is all you have as an artist, then an artist you are not. You forget that value lies not in the creation, but comes from yourselves.

The power I have — you have — is our creative ability, not the things that we have created. Make everything that I’ve created disappear. Burn them. Delete them. Take them all. I, as a creative person, will still produce. Copycats cannot. People hiring me want me and what I can do.

People like Katryna whine, “With every image that I put on the internet…” Really? Wow! Tell me more! Are you saying that you didn’t realize that putting stuff on the ‘Net and then crying that people copied your stuff is like crawling into the lion cage at the zoo and complaining that you got mauled? Maybe Congress should pass a law requiring warning labels on computers sold to creative professionals.

Instead of asking the government to use violence on your behalf, ask how you can use the nature of the ‘Net to your advantage (or don’t put stuff on the ‘Net). Crybaby artists give the rest of us a bad name.

How about this for a novel idea: contact your Congress Critter and suggest improvements, that would help the public domain make a re-appearance, starting with orphan works. Oh! I’m sorry, I forgot. That would take some creativity and thinking, wouldn’t it?

– STGM

General Welfare My A**

In these heady days of open acceptance of both fascism and socialism, pissing on the Constitution and Founding Fathers has become a habit so ingrained that nobody remembers to “zip up.”

On 3 March 1817 President James Madison, frequently dubbed “the Father of the Constitution”, vetoed a bill passed by Congress and issued the following statement. In it he thoroughly rejects the idea that the Constitution grants the Federal government broad powers to meddle in State affairs, even with the best intentions. Today people suppose that the so-called “commerce clause” and “general welfare” clause grant arbitrary power to the Federal government, but here Madison reminded Congress that its powers extended only as far as was specifically enumerated (i.e. listed in black and white in Article I, Section 8, Paragraphs 2–17), and “reading between the lines” was unconstitutional. Pay special attention to the fourth paragraph, after the introduction.

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To the House of Representatives of the United States:

Having considered the bill this day presented to me entitled “An act to set apart and pledge certain funds for internal improvements,” and which sets apart and pledges funds “for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense,” I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.

The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.

“The power to regulate commerce among the several States” cannot include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce with a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.

To refer the power in question to the clause “to provide for common defense and general welfare” would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory* and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms “common defense and general welfare” embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared “that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.

A restriction of the power “to provide for the common defense and general welfare” to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution.

If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided in the bill cannot confer the power. The only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution.

I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.

James Madison,
President of the United States

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Emphasis ours.

*Point of vocabulary:
nugatory, n., of no force; inoperative; ineffectual.
Source: Noah Webster’s 1828 American Dictionary of the English Language

STGM