Apparently this is *the* seminal image of the Framers (practically the only good representation that came up in Google Images). PS it's in the public domain.

Many of our readings have referred to the concept of originalism as a historical defense of copyright reform and a robust opposition to perpetual copyright. As one normative theory of jurisprudence – “jurisprudence” meaning how judges ought to interpret the law in deciding cases – originalism understands the Constitution according to the framers’ “original” intentions and values. For instance, Barlow’s “The Economy of Ideas” opens with Thomas Jefferson’s opinion on property and ideas (in quite the originalist fashion):

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point…incapable of confinement or exclusive appropriation.”

In Viral Spiral, Bollier details how Lawrence Lessig appealed to conservative justices’ originalist beliefs in Eldred v. Ashcroft (2003). Lessig argued that the framers initially intended to grant exclusive property rights for a “limited Time” and that Congress consequently overstepped its bounds in continuing to extend copyright terms. This notion, albeit romanticized, is also quite flawed in its assumptions. To assume that we, citizens of the 21st century, could completely understand the framers’ 18th century objectives, is abstract and arrogant. Since there’s no way we can know their subjective thoughts, we can only interpret the Constitution by their words (which represents the textualist theory of jurisprudence). Furthermore, the concept of “the framers’ intentions” presupposes that all of the framers shared a single hivemind whereas in actuality the Constitution was the result of tense debate and disagreement. After all, Madison and Jefferson were hardly in agreement about whether or not to include the copyright clause in Article I, Section 8.

An alternative to originalism is sociological jurisprudence – a theory that several readings have alluded to but haven’t labeled explicitly. Whereas originalism privileges the intentions of men long deceased, sociological jurisprudence calls for judges to rule according to “the felt necessities of the time.” Rather than considering the law to be the ultimate authority outside of culture, this approach takes into account contemporary social sciences and changing norms. When people call upon law to “catch up” and “adapt” to modern digital society, when Tehranian speaks of a fundamental “law/norm gap,” and when Lessig realizes he should have explained the “direct harm” of perpetual copyright in the 21st century, they are tacitly evoking sociological jurisprudence. Moving forward, which messaging strategy do you think would be most effective in bringing out copyright law reform – one based on originalism or sociological jurisprudence?

This interesting quotation from Viral Spiral somehow combines the two:

In a 1993 law review article, Lessig wondered how courts should interpret the law when public sentiment and practice have changed. If a judge is going to be true to the original meaning of a law, Lessig argued, he must make a conscientious ‘translation’ of the law by taking account of the contemporary context…The important thing in interpreting law, therefore, is ‘fidelity to translation.’ (76)

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