On The High Seas

Aaron Swartz had an interesting idea for what he called "The Next Eldred." Article I, Section 8 of the US Constitution reads, in part:

The Congress shall have the Power To ... define and punish Piracies and Felonies committed on the high Seas...

Aaron proposes that this limit may apply to the constitutionality of, say, the DMCA. Congress may punish piracy on the high seas only, says Aaron, "not on the low seas ... in homes or businesses."

Piracy simply doesn't mean what it used to. Webster's entry for 'piracy' includes two definitions involving the phrases "robbery on the high seas," while the third states that piracy is "the unauthorized use of another's production, invention, or conception especially in infringement of a copyright." The use of the words 'piracy' to apply to "intellectual property theft" and 'pirate' to apply to "intellectual property thief" (both concepts that I am not even convinced are real) has only begun after campaigns by organizations such as the RIAA and the MPAA over the past few decades. They were smear campaigns, and they worked.

But that's no reason to fall into their trap and use their definition of pirate as a legitimate one. Downloading an MP3 does not make you a pirate; sawing off your right leg at the knee, attaching a peg, wearing an eye patch and saying "Arr!" a lot does. Don't call yourself a pirate unless you really are one. But I digress.

Sure, the DMCA is bad law. But I don't think that challenging it as not being within the enumerated powers of Congress is a worthwhile venture. The Necessary and Proper Clause would trump any such argument anyway.

Later: Heh. I went back and reread Aaron's entry, and it seems like it was largely in jest. Silly me.

I'm still no pirate.

December 08, 2002 - 07:27 PM