Originally Posted by bergj
That's definitely the question and it would take a lot of research and thought to get the answer to that. My feeling is that it is in fact unconstitutional what they are doing. But you could argue it in other ways as well.
Bear with me, what part of the American constitution are you referring to when you say it's unconstitutional?
There's a small handful of highly debated, vague bits in the constitution that later spawned the patent laws, the copyright laws, and the commerce clause. Vague, unapplicable and old enough that things have veered so far off those origins as to not have a single mention of constitutionality or not in this kind of cases in quite a while. Not a succesful one in the notable cases at least.
And if you refer to clause 8, the news is that your illustration portfolio isn't deemed a "useful art", therefore not covered, not that it would unless you had registered the work to begin with anyway
Here's an interesting bit for your case, in the fight to prove that SOPA and PIPA were unconstitutional the argument that clause 8 would warrant people ownership of their own artwork, and SOPA and PIPA would potentially deviate that, was shot down early by making it very clear that many of the arts (non technical illustration, music etc.) were simply not the useful arts.
The constitution might apply to writing, invention, and technical illustration, and the last only backed by second. It sure as hell, according to some of the biggest jurists in your country, did not apply to some kids' illustrations on deviantart
Do you really think you could engage a constitutional debate and create precedents in court with a case like this? Even if it had a leg to stand on, and it probably doesn't, constitutionality is a thorny argument that gets a wide berth from every court for as long as they can, because the precedents can have gimongous repercussions.
For six years of law studies you are choosing your fight and how to fight it quite poorly IMO. I have sincere doubts you would be able to represent yourself quite well in court against Sony, but I'd love to see the sessions on video if you ever get there
Something you might want to read by the way which applies to the same thing from the other side of the fence:
This point is emphasized in these excerpted words of Thomas Jefferson, enacted by the unanimous vote of the Kentucky House of Representatives, November 10, 1798:
2. Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the laws of nations, and no other crimes whatever, and it being true as a general principle, and one of the amendments to the Constitution having also declared, "that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people ;" That means there is no power to make it a crime to commit "theft" of "intellectual property".
Sony would barely be committing mis-appropriation, I seriously doubt you could call the constitution into it