Comments on: The Problem With Originalism (or, Originalism v. Sociological Jurisprudence) http://copyrightcommerceandculture.com/2009/09/24/the-problem-with-originalism/#utm_source=feed&utm_medium=feed&utm_campaign=feed E59.1405, The Media, Culture, and Communications Department at the Steinhardt School of Education at NYU Sun, 05 Feb 2012 19:50:47 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Fred http://copyrightcommerceandculture.com/2009/09/24/the-problem-with-originalism/comment-page-1/#comment-32 Fred Thu, 24 Sep 2009 18:47:34 +0000 http://copyrightcommerceandculture.com/?p=184#comment-32 Great questions, Nina. I underlined that precise passage about translation from Bollier as well. Great questions, Nina. I underlined that precise passage about translation from Bollier as well.

]]> By: superhawk http://copyrightcommerceandculture.com/2009/09/24/the-problem-with-originalism/comment-page-1/#comment-31 superhawk Thu, 24 Sep 2009 16:46:56 +0000 http://copyrightcommerceandculture.com/?p=184#comment-31 Before I get to the question at hand, I wouldn't agree with your assessment of originalism in full, because originalism does take some disagreement into account. Lessig's argument, though, was more about that textual jurisprudence. The argument was "the Constitution explicitly states that copyright be for 'limited times'. If Congress can extend EXISTING copyrights, then it would be able to keep extending the term each time things would fall into the public domain, making terms effectively indefinite and thus violating the Constitution." As to your question, though, I believe that overall Sociolgical jurisprudence should prevail in almost any context, assuming that it still takes the Framers' into account. Just as we have been reading about the history of copyright and the arguments that gave birth to it, judges should also consider this history, distil it into it's conceptual form, and then re-apply it to the current social context. "How do the Framers' concerns about the power of monopolies in Copyright law apply in a world that is dominated by 5-6 media conglomerates?" The Constitution is filled with vague language that we continue to struggle to define for our modern world. It is vitally important that we are able to re-cast the fundamental questions of power-balancing and freedom using the facts our 21st century society. Before I get to the question at hand, I wouldn’t agree with your assessment of originalism in full, because originalism does take some disagreement into account. Lessig’s argument, though, was more about that textual jurisprudence. The argument was “the Constitution explicitly states that copyright be for ‘limited times’. If Congress can extend EXISTING copyrights, then it would be able to keep extending the term each time things would fall into the public domain, making terms effectively indefinite and thus violating the Constitution.”

As to your question, though, I believe that overall Sociolgical jurisprudence should prevail in almost any context, assuming that it still takes the Framers’ into account. Just as we have been reading about the history of copyright and the arguments that gave birth to it, judges should also consider this history, distil it into it’s conceptual form, and then re-apply it to the current social context. “How do the Framers’ concerns about the power of monopolies in Copyright law apply in a world that is dominated by 5-6 media conglomerates?”

The Constitution is filled with vague language that we continue to struggle to define for our modern world. It is vitally important that we are able to re-cast the fundamental questions of power-balancing and freedom using the facts our 21st century society.

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