Re: [xml-dev] Suggestion test - WAS: Patents on XML software, file forma

[Tatu Saloranta <cowtowncoder@yahoo.com>]

--- sterling <sstouden@thelinks.com> wrote:

...
> I wonder if that "Prior idea test" actual meets the
> constitutional 
> standard or intention?  
> 
> Constitution Article 1, Section 8, says, in relevant
> part: the Congress 
> shall have the legislative power to:
> "To promote the progress of science and useful arts,
> by securing for a  
> limited time to authors and inventors, the exclusive
> right to their  
> respective writings and discoveries".  
> 
> My reading finds the words of the constitution does
> not say ideas are 
> protected.  The words of Section 8 secure exclusive
> right to the writings 
> and discoveries of the respective authors and
> inventors.  Sec 8 does not 
> say that it prevents other authors or inventors from
> do whatever writing 
> or inventing they desire?  The courts and the
> congress have tried to 
> change it to mean a 2nd inventor cannot invent the
> same thing as the 
> first?

The constitution itself is not a (set of) law(s), but
meta-law: it limits what kinds of laws legislation can
issue. And in this particular case, it just defines 
the idelogical framework for actual copyright laws: as
such it is quite a loose definition of why such laws
could be drafted ("to promote...", and what the
limitations should be ("for limited time...").

So it's not as if congress et al have been trying to
change constitution (except by trying to cheat on "for
limited time" part) as much as creating actual laws.
Although I disagree with many of them at one point or
other, I don't think they are incompatible with the
constitution: and it seems courts that matter (ones
that give rulings on consitutionality of laws) do not
think they are, either.

This means that for the tests used, constitution would
seem rather irrelevant: they are related to specific
laws, not to constitution. Laws themselves have to
obey limitations imposed by the constitution.

-+ Tatu +-


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