A recent Supreme Court case raises interesting questions that we rarely think about: Where do our property rights come from? Just how far do property rights extend? As reported in a variety of media outlets, the Supreme Court will be considering arguments in Kirtsaeng v. John Wiley & Sons, 2012 over the right to resell textbooks, which affect the lives of anyone who has ever bought or sold used books.

A college student originally from Thailand, Supap Kirtsaeng, discovered that the textbooks he was required to buy were substantially cheaper in his native country than in the U.S., so he had his relatives ship the items overseas where he could then post them on eBay after he used them. Wiley Publishers sued Kirtsaeng, alleging that he infringed on their copyright and unlawfully resold their products. Under the Copyright Clause Congress has the power to secure rights for authors and inventors, but for how long and how strong are these rights?

Article I, Section 8 of the US constitution, known as the Copyright Clause, states:

                “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”

The Copyright Clause grants power to Congress for a specifically stated reason – namely the promotion of the progress of science and useful arts. This has put Congress, the Supreme Court, and agencies like the Patent Office, in the position of deciding through legislation and case law what is a useful art (referring here to a wide variety of manufactured goods, not just paintings) and what falls under the umbrella of progress of science.

To the end of promoting arts and science, there have been a number of principles incorporated into copyright to make sure the inventors and investors have incentives to embark on new ideas and ventures. To make sure that the progress of art and science are not burdened by copyright law, though, the Fair Use doctrine allows for partial reuse and adaptation of copyrighted works. This allows educators, students, journalists, and others the ability to reproduce copyrighted works in certain circumstances.

The First Sale doctrine allows purchasers of copyrighted goods to resell them as they see fit. This doctrine was first acknowledged in the Bobbs-Merril Co. v. Straus, 1908 case, which allowed Macy’s department store to resell books at the price they determined. This was an acknowledgement by the Court that copyrights do not allow for an indefinite period of control by the publisher/creator, and that people have a right to do what they want with their own property.

The Kirtsaeng v. John Wiley & Sons, 2012 asks whether the First Sale doctrine applies to foreign-produced works. On a broader level, the Supreme Court is grappling with the idea of ownership. At what point when we buy something does it become “ours”? And could we sell something and still retain a measure of control over it? The Constitution provides certain guiding principles, but in many ways it is up to the courts legislatures, and most of all, citizens, to interpret these principles and apply them to our connected, global world.

Philadelphia –

As September began, the Convention had made remarkable progress toward drafting a new Constitution, but many questions had been left for later. The delegates agreed “to refer such parts of the Constitution as have been postponed, and such parts of Reports as have not been acted on, to a Committee of a member from each State….” The “Brearly Committee,” chaired by David Brearly of New Jersey, reported back its suggestions for how to address difficult issues related to the powers of Congress and the shape of the Executive branch.

One issue that touched on the relationships of the states to one another and to the national Legislature was the full faith and credit clause. The Articles of Confederation had such a clause, though it applied very narrowly to state courts: “Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State.” The Brearly Committee report recommended expanding the scope of this full faith and credit to legislative as well as judicial proceedings, and granting the national Legislature a new power to enforce compliance. Delegates settled on the language we now read in Article IV, Section 1: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

The Brearly Committee also made recommendations regarding the powers of Congress over commerce and finance. Congress, it was agreed, could “lay and collect taxes duties imposts & excises, to pay the debts and provide for the common defence & general welfare, of the U. S.” Congress would also be given the power of regulating relations with Indian tribes, of making laws to govern federal lands, and of granting patents to protect the rights of inventors and authors of property in their ideas.

Finally, delegates had already agreed to give Congress – as opposed to the Executive – power to “declare war”. The Brearly Committee’s report led to the granting of two new powers to Congress that minimized the Executive power over war.  First, Congress, and not the Executive, was empowered to grant letters of marque and reprisal, which effectively deputized private vessels to capture vessels suspected of piracy and bring them for trial. Second, Congress was empowered “to raise and support armies” but it was stipulated that “no appropriation of money to that use shall be for a longer term than two years.” These powers, among others, reflected a general wariness among the Convention’s delegates of granting too much power to the Executive branch. This wariness is also apparent in the Convention’s inability to settle on the Chief Executive’s powers, mode of election, and term of office, until very late in the Convention. That debate will be the subject of our next post.