Subject: Re: the .NET battle ends
From: Ben_Tilly@trepp.com
Date: Fri, 21 Sep 2001 15:18:19 -0400


Tom Lord wrote:
>        The SSSCA by contrast appears designed to fall under Congress'
>        authority under the Commerce Clause.
>
> Thank you for pointing out that rather important point.
>
No problem.  I was thinking that there was no way to defend this under
intellectual property law, then I realized that they had no need to.
>
>       he said that it might be challenged under the theory that
>       the grants of power to Congress also carry implicit restrictions.
>       IANAL, but it looks like a far harder case to say that you cannot
do
>       something allowed under one grant of power because another grant of
>       power had a limitation.
>
> I guess you are thinking of the "limited time" part of the
> "promote progress" clause?
>
Yes.  It is against the Constitution for Congress to grant an eternal
copyright or patent.  It is quite legal for them to outlaw the saving
of digital information in forms without content protection.

I should note for those who are wondering what we are all gibbering
about that FindLaw is an excellent resource.

The US Constitution:
  http://www.findlaw.com/casecode/constitution/
The powers of Congress (scroll to section 8 for the grants of power)
  http://caselaw.lp.findlaw.com/data/constitution/article01/
The interpretation of the Commerce Clause:
  http://caselaw.lp.findlaw.com/data/constitution/article01/28.html#1
The interpretation of the Copyright (Patent) Clause:
  http://caselaw.lp.findlaw.com/data/constitution/article01/39.html#1

> All of Congress' authorities are unambiguously limited by the
> amendments, the other articles, and the preamble.  The commerce
> clause does not mean "Congress can do whatever it damn well pleases
> so long as it pertains, however vaguely, to money crossing state
> borders."
>
The modern interpretation of the Commerce Clause has virtually reached
that point.  The actual grant goes:  "To regulate Commerce with
foreign Nations, and among the several States, and with the Indian
Tribes;".  Reading this with naive common sense you might think that
this had all sorts of restrictions.  For instance is it commerce if
money is not involved?  Can a law passed by Congress affect commerce
that takes place inside of a state?  Does Congress have the power to
regulate aspects of life which might touch on commerce in some way
even though they are not themselves commerce?

The answer to all of these naive objections is that Congress does
indeed have that power.  At least given the way that the courts have
ruled since the 1930's.  For instance laws passed by Congress about
child custody cases apply under the Commerce Clause.  This is true
even though very few people think of divorce as commerce, all parties
involved are in the same state, and nobody involved is of an Indian
tribe!

Compared to that, it is not at all far-fetched to regulate the
internal operations of any software that is offered for sale or
otherwise distributed within the US.  Indeed stop and think about how
intrusive product safety laws are on many, many industries.  You
cannot sell a car without a seatbelt or one which does not pass a set
of government tests.  If you sell a product you have an implicit
warranty on the sale of that product, and the warranty may apply
even when it was used incorrectly.

Look, I detest the thought of the SSSCA.  I think it is a horrible law
that devastates industry.  However I can't even convince myself that
it is outside of the power of Congress to pass!  And I also cannot
convince myself that it regulates the software industry in a more
intrusive way than many other industries are already regulated.

OTOH IANAL.  A lawyer might come along and tell us that I am full of
BS.  But until one does, I don't think that complacency is a good
idea.

Cheers,
Ben