[free-sklyarov] Fair use "rights"

Mark K. Bilbo mkbilbo at cdcla.com
Mon Aug 6 09:33:12 PDT 2001

The intent of the Founders is overlooked (if not overtly ignored) often
these days in any discussion of rights. The more I read of what Jefferson
(and Madison) said about copyright, what emerges is that the current
discussion is a total inversion of what the Founders intended.

That is, copyright and patent are the "privileges." There's a social
contract involved here in that we, the people, grant a monopoly to a creator
of art or science or such for a LIMITED time to encourage them to do such
work. A reward for creating something new that benefits society at large.

These grants of monopoly were intended to reward the creative among us for
contributing to the overall good of society. They were never intended to be
"property" style "rights." In fact, I cannot find ANYTHING that leads me to
believe the Founders considered copyright (and such) protections to be a
"right" AT ALL.

Further, Jefferson expressed many ideas that fit the Internet and the Free
Software/Open Source movements, commenting that when ideas (information) are
shared, the creator loses nothing in the exchange. He eschewed the very
thought that you could "steal" an idea, eschewed any comparison with

It apparently took many years before Jefferson came "on board" with the idea
of EVER granting monopolies such as copyright. He had serious misgivings
about the idea and thought it was probably a bad idea to have such things at
all. Even when he accepted that it might be a useful idea to grant temporary
monopolies, he advocated a very restrictive amendment to the Constitution
that would limit such grants to a specific, non-renewable term.
Unfortunately, the amendent never went anywhere.

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