> I believe Khanna's opening point about the purpose of copyright is actually incorrect.

Yes, you said that already. What you haven't said is why you believe this, except to cite an obscure (and not at all on point) comment on HN. I've done a little bit of searching, and it is easy to find extensive well-reasoned arguments that Khanna is spot on. e.g.:

http://open-spaces.com/article-v2n1-loren.php

I can't find a single coherent defense of the opposing position.

This is a good essay, thanks for digging it up. I'm not sure it convinces me that Khanna isn't off base in the introduction to his memo, but that introduction isn't really the core of my argument and I wouldn't want to get derailed.

So what is the core of your argument? That the memo was not politically wise? That is manifestly true. But it says nothing about whether or not it was right on the merits, or even whether or not it was "shockingly sensible." As far as I can tell, it was all three of those things. If you don't agree, I'd really like to know why.

Obviously repeating myself: that the reforms the memo advocated for managed simultaneously to be unrealistic and not particularly meaningful.

If they're not meaningful, wouldn't they be more realistic?

No! (Well, besides ratcheting terms back). That's the thing I'm trying to point out. If, like me and I think a lot of people, you think that the 2 big problems with our current copyright regime are (1) ordinary people are under constant threat of being bankrupted by studios for availing themselves of the most convenient access to a TV show or movie, and (2) that it's dangerous to start a consumer Internet company that deals in media, then these reforms meaningfully solve none of those problems. But at the same time they manage to be inflammatory to the content industry: exemptions for remixing rights-encumbered songs, punitive measures for mistaken takedowns, and slightly but not meaningfully increased costs of litigating infringement.

Ah, well there's your problem right there. I don't think the two problems you cite are the big problems. Those are merely symptoms of the real problem, which is that content providers are promulgating the belief that copyright is an entitlement rather than what the Constitution actually says it is: a grant. All the other problems flow from that fundamental mistake.

The thing that tzs was responding to is different than the khanna memo, which is here:

http://www.theamericanconservative.com/an-anti-ip-turn-for-t...

tzs is probably correct, but he was actually responding to this:

http://news.ycombinator.com/item?id=4862752

(His comment is here: http://news.ycombinator.com/item?id=4862752)

So long story short, even if tzs is correct I don't think that means that khanna is wrong, as his interpretation of the constitution doesn't depending on the 'sciences' part in any way. In fact, the way he is using 'sciences' seems to be consistent with the way tzs defines it.

The point 'tzs was making is that the purpose the framers had in ratifying the copyright clause was essentially the same purpose to which it is applied today. Khanna's point is that it has been warped towards a purpose other than the framers had in mind, which again does not in fact appear to be correct.

"Khanna's point is that it has been warped towards a purpose other than the framers had in mind, which again does not in fact appear to be correct."

I guess I still don't see how you're getting that. Khanna's criticism of the current copyright law is that it is being used to enrich creators rather than to maximize innovation. TZS's comment is about what can be copyrighted or patented, which Khanna never takes issue with.

What specifically do you think he is wrong about with regards to his interpretation of the constitution?

You might be right, I'll think of a more carefully reasoned response to this later today.

Here's a study prepared for Congress in the late '50s when they were considering a revision of copyright law that provides a good look at the historical development of our understanding of the scope of the copyright power in the US: http://www.copyright.gov/history/studies/study3.pdf