The reasoning underlying Judge Hand addressed two questions: First, he asserted that under Sec. 4 of the Copyright Act of 1909, a “copyrightable work” encompassed the entirety of the work product produced by an author, see: Copyright Act of 1909 Pub. L. 60-349, ch. 320, § 4, 35 Stat. 1075, 1076 (March 4, 1909). Second, the Constitution of the United States, and Sec. 5 of the Copyright Act of 1909 Pub. L. 60-349, ch. 320, § 5, 35 Stat. 1075, 1076 (March 4, 1909) as amended was never intended to constitute an exhaustive list of copyrightable material under the law Id: Reiss v. National Quotation Bureau, Inc., 276 F. 717, 718 (S.D.N.Y. 1921).
In Judge Hand’s mind the question of how to determine the answers regarding the definitions of writing and authorship gave rise to a broader and inherently personal question, one that affects every citizen of the Republic. He asked how the framers of the Constitution of the United States intended for succeeding generations to view the sum total of their efforts.
…. if our Constitution embalms inflexibly the habits of 1789 there may be something to the point. But it does not; its grants of power to Congress comprise, not only what was then known, but what the ingenuity of man should devise thereafter. Of course, the new subject-matter must have some relation to the grant; but we interpret it by the general practices of civilized peoples in similar fields, for it is not a strait-jacket, but, a charter for a living people. Reiss v. National Quotation Bureau, Inc., 276 F. 717 (S.D.N.Y., 1921)
Does the Constitution of the United States offer any evidence be it circumstantial, concrete, direct, or indirect that the document’s framers intended the Constitution of the United States to be sufficiently flexible, malleable, and pliable enough to address the continued evolution of American society?
I would argue that for the most part any evidence of these traits is microscopic, invisible to the naked eye forcing an individual to engage in a close scrutiny of the Constitution to discover any apposite traces, that is not to say that the text is absolutely devoid of signals affirming the proposition that the members of the Constitutional Convention of 1787 envisioned a document capable of expanding and contracting to conform with societal evolution.
For example, the interrelationship and dynamics that permit the Fourth, Fifth, and Sixth Amendments demonstrate that in the improbable and unlikely even that any of the three amendments were repealed, the other two would cease to function effectively. In 1886, Associate Justice Joseph Bradley highlighted the relationship between the Fourth and Fifth Amendments in his majority opinion in Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886) when he wrote:
We have already noticed the intimate relation between the two amendments. They throw great light on each other. For the "unreasonable searches and seizures" condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment; and compelling a man "in a criminal case to be a witness against himself," which is condemned in the Fifth Amendment, throws light on the question as to what is an "unreasonable search and seizure" within the meaning of the Fourth Amendment, Boyd v. United States, 116 U.S. 616, 634 (1886).In Boyd, Justice Bradley asserted that the proposition advancing a linkage between the execution of warrantless searches, seizures and the violation of personal liberties including the protection against self-incrimination antedated the adoption of the Articles of Confederation, and the Constitution of the United States, some three-quarters of a century removed from the decision in Boyd, Associate Justice Thomas Campbell Clark, writing for a six person majority in Mapp v. Ohio, 367 U.S. 643; 81 S. Ct. 1684; 6 L. Ed. 2d 1081; 84 A.L.R.2d 933 (1961) affirmed Justice Bradley’s thesis arguing for a proximate relationship between the Fourth and Fifth Amendments, id: Mapp v. Ohio, 367 U.S. 643, 646-647 (1961). Both Boyd and Mapp maintained that the written foundations for the guarantees contained in the Fourth, Fifth and Sixth Amendments rested within preexisting English law as recapitulated in chapter Sir Edward Coke’s The Third Part of the Institutes of the Laws of England: Concerning High Treason, and Other Pleas of the Crown and Criminal Causes, and Sir William Blackstone’s The Fourth Book of the Commentaries on the Laws of England: Of Public Wrongs. These principles coalesced In 1765 when Lord Camden, the Chief Justice of the Common Pleas, a contemporary of Blackstone’s handed down his decision in Entick v. Carrington, EWHC KB J98; 19 Howell's State Trials 1029; 95 ER 807 (1765).
Since, the Bill of Rights entered into force on December 15, 1791 the manner in which federal and state courts have interpreted these provisions has been subjected to the same evolutionary forces that have affected development of the Republic, on the field of constitutional law these pressures have manifested themselves through a restrictive or permissive interpretation of constitutional guarantees. As Dean Pound noted in his 1922 work entitled An Introduction to the Philosophy of Law.
In all stages of what may be described fairly as legal development philosophy has been a useful servant. But in some it has been a tyrannous servant and in all but form a master. It has been used to break down the authority of outworn tradition, to bend authoritatively imposed rules that admitted of no change to new uses which changed profoundly their practical effect, to bring new elements into the law from without and make new bodies of law from these new materials, to organize and systematize existing legal materials and to fortify established rules and institutions when periods of growth were succeeded by periods of stability and of merely formal reconstruction (Pound 1982, 1-3).
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[1] Copyright Act of 1909 Pub. L. 60-349, ch 320, §§ 1-63 35 Stat. 1075 (March 4, 1909) amended by the Townsend Amendment of 1912 Pub. L. 62-303, ch 356, § 5, 37 Stat. 488 (August 24, 1912) amended by the Act of March 2, 1913 Pub. L. 62-405, ch. 95, § 55, 37 Stat. 724 (1913); amended by the Copyright Consolidation Act of 1914 Pub. L. 63-78, ch. 47, § 12, 38 Stat. 311 (March 28, 1914); amended by the Act of December 18, 1919 Pub. L. 66-102, ch. 11, §§ 8, 21, 41 Stat. 368 (1919); codified as Title 17 U.S.C. 101 et seq. Copyrights effective December 7, 1925; amended by the Act of July 3, 1926 Pub. L. 69-464, ch. 743, § 15, 44 Stat. 818 (1926); amended by the Copyright Consolidation Act of 1928 Pub. L. 70-478, ch. 704, §§ 57, 61, 45 Stat. 713 (May 23, 1928); amended by Act of January 27, 1938 Pub. L. 75-421, ch. 10, § 7, 61, 52 Stat. 6 (1938); amended by Act of January 27, 1938 Pub. L. 75-421, ch. 10, § 7, 61, 52 Stat. 6 (1938); Act of July 31, 1939 repealed Sec. 3 the “Labels Rule” of the Copyright Act of June 18, 1874 codified December 7, 1925 as 17 U.S.C. 63, authority transferred to 17 U.S.C. 5(k) under Pub. L. 76-244, ch. 396, § 5(k), 53 Stat. 1142 § 2 amending 17 U.S.C. 5(k) (1939); amended by Act of March 15, 1940 Pub. L. 76-434, ch. 57, § 23, 54 Stat 51 (1940); amended by Act of April 11, 1940 Pub. L. 76-450, ch. 81, § 33, 54 Stat. 106 (1940); amended by Act of September 25, 1941 Pub. L. 77-258, ch. 421, § 8, 55 Stat. 732 (1941); repealed by and replaced by the Copyright Act of 1947 Pub. L. 80-281, ch. 391, §§ 1-215, 61 Stat. 652 (1947) repealed by and replaced by the Copyright Act of 1976 Pub. L. 94-553, 90 Stat. 2541 codified as 17 USC § 101 et seq., effective January 1, 1978 amended by Copyright Cleanup, Clarification, and Corrections Act of 2010, Pub. L. 111-295, 124 Stat. 318.0 (December 9, 2010).
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