The Enumerated Powers Doctrine and Intellectual Property: An Imminent Constitutional Collision

George Washington Law Review

Volumn 67, Issue 2, 1999, Pages 359-398

  Patry, William ^a  

^a NONE

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EID: 0033410887     PISSN: 00168076     EISSN: None     Source Type: Journal    
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References (299)

1. Clinton v. New York, 118 S. Ct. 2091, 2059 (1998).
2. City of Boerne v. Flores, 117 S. Ct. 2157, 2172 (1997).
3. Printz v. United States, 117 S. Ct. 2365, 2384 (1997); see also Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180 (1998).
4. Printz v. United States, 117 S. Ct. 2365, 2384 (1997); see also Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180 (1998).
5. United States v. Lopez, 514 U.S. 549 (1995). This is not to suggest that Lopez represents a substantial change of course in the Court's Commerce Clause jurisprudence - a jurisprudence that has, in any event, not been "marked . . . by a coherent or consistent course of interpretation." Id. at 568 (Kennedy & O'Connor, JJ., concurring). Cf. id. at 584 (Thomas, J., concurring) (arguing for "temper[ing] our Commerce Clause jurisprudence in a manner that both makes sense of our recent case law and is more faithful to the original understanding of that Clause"). Lopez may, perhaps, best be understood as a slight retrenchment in a decades-long unchecked congressional exercise of Commerce Clause power. See, e.g., Richard A. Epstein, Constitutional Faith and the Commerce Clause, 71 NOTRE DAME L. REV. 167 (1996); Lino A. Graglia, United States v. Lopez: Judicial Review under the Commerce Clause, 74 TEX. L. REV. 719 (1996); Herbert Hovenkamp, Judicial Restraint and Constitutional Federalism: The Supreme Court's Lopez and Seminole Tribe Decisions, 98 COLUM. L. REV. 2213 (1996).
6. United States v. Lopez, 514 U.S. 549 (1995). This is not to suggest that Lopez represents a substantial change of course in the Court's Commerce Clause jurisprudence - a jurisprudence that has, in any event, not been "marked . . . by a coherent or consistent course of interpretation." Id. at 568 (Kennedy & O'Connor, JJ., concurring). Cf. id. at 584 (Thomas, J., concurring) (arguing for "temper[ing] our Commerce Clause jurisprudence in a manner that both makes sense of our recent case law and is more faithful to the original understanding of that Clause"). Lopez may, perhaps, best be understood as a slight retrenchment in a decades-long unchecked congressional exercise of Commerce Clause power. See, e.g., Richard A. Epstein, Constitutional Faith and the Commerce Clause, 71 NOTRE DAME L. REV. 167 (1996); Lino A. Graglia, United States v. Lopez: Judicial Review under the Commerce Clause, 74 TEX. L. REV. 719 (1996); Herbert Hovenkamp, Judicial Restraint and Constitutional Federalism: The Supreme Court's Lopez and Seminole Tribe Decisions, 98 COLUM. L. REV. 2213 (1996).
7. United States v. Lopez, 514 U.S. 549 (1995). This is not to suggest that Lopez represents a substantial change of course in the Court's Commerce Clause jurisprudence - a jurisprudence that has, in any event, not been "marked . . . by a coherent or consistent course of interpretation." Id. at 568 (Kennedy & O'Connor, JJ., concurring). Cf. id. at 584 (Thomas, J., concurring) (arguing for "temper[ing] our Commerce Clause jurisprudence in a manner that both makes sense of our recent case law and is more faithful to the original understanding of that Clause"). Lopez may, perhaps, best be understood as a slight retrenchment in a decades-long unchecked congressional exercise of Commerce Clause power. See, e.g., Richard A. Epstein, Constitutional Faith and the Commerce Clause, 71 NOTRE DAME L. REV. 167 (1996); Lino A. Graglia, United States v. Lopez: Judicial Review under the Commerce Clause, 74 TEX. L. REV. 719 (1996); Herbert Hovenkamp, Judicial Restraint and Constitutional Federalism: The Supreme Court's Lopez and Seminole Tribe Decisions, 98 COLUM. L. REV. 2213 (1996).
8. United States v. Lopez, 514 U.S. 549 (1995). This is not to suggest that Lopez represents a substantial change of course in the Court's Commerce Clause jurisprudence - a jurisprudence that has, in any event, not been "marked . . . by a coherent or consistent course of interpretation." Id. at 568 (Kennedy & O'Connor, JJ., concurring). Cf. id. at 584 (Thomas, J., concurring) (arguing for "temper[ing] our Commerce Clause jurisprudence in a manner that both makes sense of our recent case law and is more faithful to the original understanding of that Clause"). Lopez may, perhaps, best be understood as a slight retrenchment in a decades-long unchecked congressional exercise of Commerce Clause power. See, e.g., Richard A. Epstein, Constitutional Faith and the Commerce Clause, 71 NOTRE DAME L. REV. 167 (1996); Lino A. Graglia, United States v. Lopez: Judicial Review under the Commerce Clause, 74 TEX. L. REV. 719 (1996); Herbert Hovenkamp, Judicial Restraint and Constitutional Federalism: The Supreme Court's Lopez and Seminole Tribe Decisions, 98 COLUM. L. REV. 2213 (1996).
9. Others include a criminal forfeiture statute that violated the Excessive Fines Clause of the Eighth Amendment, see United States v. Bajakajian, 118 S. Ct. 2028 (1998); a Takings Clause violation under the Coal Industry Retiree Health Benefits Act of 1992, see Eastern Enters, v. Apfel, 118 S. Ct. 2131 (1998); and, a harbor tax that violated the export tax prohibition in Article I, Section 9, Clause 5, see United States v. United States Shoe Corp., 118 S. Ct. 1290 (1998).
10. 118 S. Ct. 1279 (1998). In Feltner, the Court invalidated, on Seventh Amendment grounds, a section of the Copyright Act for failure to provide a right to a jury. See id. at 1282.
11. Id. at 1288 (Scalia, J., concurring). The increase in the number of cases struck down on constitutional grounds is reflected in a tally quoted by Professor Charles Black for the period 1937-1967. Professor Black indicates that a mere twelve statutes were struck down during this turbulent thirty-year period. See CHARLES L. BLACK, STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW 75 (1969).
12. See Marci A. Hamilton, City of Boerne v. Flores: A Landmark for Structural Analysis, 39 WM. & MARY L. REV. 699 (1998). Professor Hamilton represented petitioner before the Court in City of Boerne.
13. 117 S. Ct. 2157 (1997).
14. See id. at 2162 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803)).
15. See id. at 2164. At the same time, by citing to Katzenbach v. Morgan, 384 U.S. 641 (1966), and Ex Parte Virginia, 100 U.S. 339 (1879), the Court seemed to signal its continued adherence to the notion of broad remedial powers under Section 5. See City of Boerne, 117 S. Ct. at 2163; see also Symposium: Reflections on City of Boerne v. Flores, 39 WM. & MARY L. REV. (1998); Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 HARV. L. REV. 153 (1997); Rachel Toker, Tying the Hands of Congress: City of Boerne v. Flores, 33 HARV. C.R.-C.L. L. REV. 273 (1998).
16. See id. at 2164. At the same time, by citing to Katzenbach v. Morgan, 384 U.S. 641 (1966), and Ex Parte Virginia, 100 U.S. 339 (1879), the Court seemed to signal its continued adherence to the notion of broad remedial powers under Section 5. See City of Boerne, 117 S. Ct. at 2163; see also Symposium: Reflections on City of Boerne v. Flores, 39 WM. & MARY L. REV. (1998); Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 HARV. L. REV. 153 (1997); Rachel Toker, Tying the Hands of Congress: City of Boerne v. Flores, 33 HARV. C.R.-C.L. L. REV. 273 (1998).
17. See id. at 2164. At the same time, by citing to Katzenbach v. Morgan, 384 U.S. 641 (1966), and Ex Parte Virginia, 100 U.S. 339 (1879), the Court seemed to signal its continued adherence to the notion of broad remedial powers under Section 5. See City of Boerne, 117 S. Ct. at 2163; see also Symposium: Reflections on City of Boerne v. Flores, 39 WM. & MARY L. REV. (1998); Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 HARV. L. REV. 153 (1997); Rachel Toker, Tying the Hands of Congress: City of Boerne v. Flores, 33 HARV. C.R.-C.L. L. REV. 273 (1998).
18. See id. at 2164. At the same time, by citing to Katzenbach v. Morgan, 384 U.S. 641 (1966), and Ex Parte Virginia, 100 U.S. 339 (1879), the Court seemed to signal its continued adherence to the notion of broad remedial powers under Section 5. See City of Boerne, 117 S. Ct. at 2163; see also Symposium: Reflections on City of Boerne v. Flores, 39 WM. & MARY L. REV. (1998); Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 HARV. L. REV. 153 (1997); Rachel Toker, Tying the Hands of Congress: City of Boerne v. Flores, 33 HARV. C.R.-C.L. L. REV. 273 (1998).
19. See id. at 2164. At the same time, by citing to Katzenbach v. Morgan, 384 U.S. 641 (1966), and Ex Parte Virginia, 100 U.S. 339 (1879), the Court seemed to signal its continued adherence to the notion of broad remedial powers under Section 5. See City of Boerne, 117 S. Ct. at 2163; see also Symposium: Reflections on City of Boerne v. Flores, 39 WM. & MARY L. REV. (1998); Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 HARV. L. REV. 153 (1997); Rachel Toker, Tying the Hands of Congress: City of Boerne v. Flores, 33 HARV. C.R.-C.L. L. REV. 273 (1998).
20. 489 U.S. 141 (1989).
21. 499 U.S. 340 (1991).
22. See infra Part I.B. The Constitution provides that "Congress shall have Power: 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." U.S. CONST. art. I, § 8, cl. 8.
23. See H.R. 2652, 105th Cong. § 1202 (1997). The bill was the subject of hearings on October 23, 1997 and February 12, 1998. See Collections of Information Antipiracy Act: Hearings on H.R. 2652 Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, 105th Cong. (1998). The House Committee on the Judiciary reported it on May 12, 1998, see H.R. Rep. No. 105-525 (1998), and the House passed it on March 19, 1998, see 144 CONG. REC. H3398 (daily ed. Mar. 19, 1998). The legislation was passed again with minor differences on August 4, 1998, as title V of the Digital Millennium Copyright Act, H.R. 2281, 105th Cong. (1998), also known as the "Christmas tree" bill. See 144 CONG. REC. H7103 (daily ed. Aug. 4, 1998). A companion bill in the Senate, S. 2291, 105th Cong. (1998), was not acted upon. Instead, the Senate requested an informal conference on the "Christmas tree" bill, H.R. 2281. The Conference Committee deleted the database provision, however, killing the initiative for the 105th Congress. See H.R. REP. No. 105-796 (1998). At the time this Article is going to print, however, the legislation has been reintroduced in the House. See H.R. 354, 106th Cong. (1999). It likely will be reintroduced in the Senate as well.
24. See infra Part V.
25. See infra Part V.
26. See infra text accompanying notes 89-94.
27. See infra Part I.B.
28. See infra text accompanying notes 24-26.
29. See, e.g., Jane C. Ginsburg, Putting Cars on the "Information Superhighway": Authors, Exploiters, and Copyright in Cyberspace, 95 COLUM. L. REV. 1466 (1995); Lawrence Lessig, The Path of Cyberlaw, 104 YALE L.J. 1743 (1994); Cass Sunstein, The First Amendment in Cyberspace, 104 YALE L.J. 1757, 1761 (1995); Eugene Volokh, Cheap Speech and What It Will Do, 104 YALE L.J. 1805, 1848-50 (1995); see also THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 3 (1970) (highlighting the First Amendment right of access to information); Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533 (1993) (discussing natural rights theories); Wendy J. Gordon, Toward a Jurisprudence of Benefits: The Norms of Copyright and the Problem of Private Censorship, 57 U. CHI. L. REV. 1009 (1990) (discussing copyright and censorship); Diane L. Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 WM. & MARY L. REV. 665, 674-85 (1992) (discussing interaction of rights in information, speech, and marketplace).
30. See, e.g., Jane C. Ginsburg, Putting Cars on the "Information Superhighway": Authors, Exploiters, and Copyright in Cyberspace, 95 COLUM. L. REV. 1466 (1995); Lawrence Lessig, The Path of Cyberlaw, 104 YALE L.J. 1743 (1994); Cass Sunstein, The First Amendment in Cyberspace, 104 YALE L.J. 1757, 1761 (1995); Eugene Volokh, Cheap Speech and What It Will Do, 104 YALE L.J. 1805, 1848-50 (1995); see also THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 3 (1970) (highlighting the First Amendment right of access to information); Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533 (1993) (discussing natural rights theories); Wendy J. Gordon, Toward a Jurisprudence of Benefits: The Norms of Copyright and the Problem of Private Censorship, 57 U. CHI. L. REV. 1009 (1990) (discussing copyright and censorship); Diane L. Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 WM. & MARY L. REV. 665, 674-85 (1992) (discussing interaction of rights in information, speech, and marketplace).
31. See, e.g., Jane C. Ginsburg, Putting Cars on the "Information Superhighway": Authors, Exploiters, and Copyright in Cyberspace, 95 COLUM. L. REV. 1466 (1995); Lawrence Lessig, The Path of Cyberlaw, 104 YALE L.J. 1743 (1994); Cass Sunstein, The First Amendment in Cyberspace, 104 YALE L.J. 1757, 1761 (1995); Eugene Volokh, Cheap Speech and What It Will Do, 104 YALE L.J. 1805, 1848-50 (1995); see also THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 3 (1970) (highlighting the First Amendment right of access to information); Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533 (1993) (discussing natural rights theories); Wendy J. Gordon, Toward a Jurisprudence of Benefits: The Norms of Copyright and the Problem of Private Censorship, 57 U. CHI. L. REV. 1009 (1990) (discussing copyright and censorship); Diane L. Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 WM. & MARY L. REV. 665, 674-85 (1992) (discussing interaction of rights in information, speech, and marketplace).
32. See, e.g., Jane C. Ginsburg, Putting Cars on the "Information Superhighway": Authors, Exploiters, and Copyright in Cyberspace, 95 COLUM. L. REV. 1466 (1995); Lawrence Lessig, The Path of Cyberlaw, 104 YALE L.J. 1743 (1994); Cass Sunstein, The First Amendment in Cyberspace, 104 YALE L.J. 1757, 1761 (1995); Eugene Volokh, Cheap Speech and What It Will Do, 104 YALE L.J. 1805, 1848-50 (1995); see also THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 3 (1970) (highlighting the First Amendment right of access to information); Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533 (1993) (discussing natural rights theories); Wendy J. Gordon, Toward a Jurisprudence of Benefits: The Norms of Copyright and the Problem of Private Censorship, 57 U. CHI. L. REV. 1009 (1990) (discussing copyright and censorship); Diane L. Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 WM. & MARY L. REV. 665, 674-85 (1992) (discussing interaction of rights in information, speech, and marketplace).
33. See, e.g., Jane C. Ginsburg, Putting Cars on the "Information Superhighway": Authors, Exploiters, and Copyright in Cyberspace, 95 COLUM. L. REV. 1466 (1995); Lawrence Lessig, The Path of Cyberlaw, 104 YALE L.J. 1743 (1994); Cass Sunstein, The First Amendment in Cyberspace, 104 YALE L.J. 1757, 1761 (1995); Eugene Volokh, Cheap Speech and What It Will Do, 104 YALE L.J. 1805, 1848-50 (1995); see also THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 3 (1970) (highlighting the First Amendment right of access to information); Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533 (1993) (discussing natural rights theories); Wendy J. Gordon, Toward a Jurisprudence of Benefits: The Norms of Copyright and the Problem of Private Censorship, 57 U. CHI. L. REV. 1009 (1990) (discussing copyright and censorship); Diane L. Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 WM. & MARY L. REV. 665, 674-85 (1992) (discussing interaction of rights in information, speech, and marketplace).
34. See, e.g., Jane C. Ginsburg, Putting Cars on the "Information Superhighway": Authors, Exploiters, and Copyright in Cyberspace, 95 COLUM. L. REV. 1466 (1995); Lawrence Lessig, The Path of Cyberlaw, 104 YALE L.J. 1743 (1994); Cass Sunstein, The First Amendment in Cyberspace, 104 YALE L.J. 1757, 1761 (1995); Eugene Volokh, Cheap Speech and What It Will Do, 104 YALE L.J. 1805, 1848-50 (1995); see also THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 3 (1970) (highlighting the First Amendment right of access to information); Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533 (1993) (discussing natural rights theories); Wendy J. Gordon, Toward a Jurisprudence of Benefits: The Norms of Copyright and the Problem of Private Censorship, 57 U. CHI. L. REV. 1009 (1990) (discussing copyright and censorship); Diane L. Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 WM. & MARY L. REV. 665, 674-85 (1992) (discussing interaction of rights in information, speech, and marketplace).
35. See, e.g., Jane C. Ginsburg, Putting Cars on the "Information Superhighway": Authors, Exploiters, and Copyright in Cyberspace, 95 COLUM. L. REV. 1466 (1995); Lawrence Lessig, The Path of Cyberlaw, 104 YALE L.J. 1743 (1994); Cass Sunstein, The First Amendment in Cyberspace, 104 YALE L.J. 1757, 1761 (1995); Eugene Volokh, Cheap Speech and What It Will Do, 104 YALE L.J. 1805, 1848-50 (1995); see also THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 3 (1970) (highlighting the First Amendment right of access to information); Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533 (1993) (discussing natural rights theories); Wendy J. Gordon, Toward a Jurisprudence of Benefits: The Norms of Copyright and the Problem of Private Censorship, 57 U. CHI. L. REV. 1009 (1990) (discussing copyright and censorship); Diane L. Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 WM. & MARY L. REV. 665, 674-85 (1992) (discussing interaction of rights in information, speech, and marketplace).
36. See, e.g., Jane C. Ginsburg, Putting Cars on the "Information Superhighway": Authors, Exploiters, and Copyright in Cyberspace, 95 COLUM. L. REV. 1466 (1995); Lawrence Lessig, The Path of Cyberlaw, 104 YALE L.J. 1743 (1994); Cass Sunstein, The First Amendment in Cyberspace, 104 YALE L.J. 1757, 1761 (1995); Eugene Volokh, Cheap Speech and What It Will Do, 104 YALE L.J. 1805, 1848-50 (1995); see also THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 3 (1970) (highlighting the First Amendment right of access to information); Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533 (1993) (discussing natural rights theories); Wendy J. Gordon, Toward a Jurisprudence of Benefits: The Norms of Copyright and the Problem of Private Censorship, 57 U. CHI. L. REV. 1009 (1990) (discussing copyright and censorship); Diane L. Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 WM. & MARY L. REV. 665, 674-85 (1992) (discussing interaction of rights in information, speech, and marketplace).
37. Memorandum from William Michael Treanor, Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice to William P. Marshall, Associate White House Counsel 23 (July 28, 1998) (on file with The George Washington Law Review) [hereinafter OLC Memo] ("H.R. 2652, by providing protection for facts, raises serious First Amendment concerns. It would restrict the ability of persons to use and disseminate factual materials that are not protected by copyright, and it arguably would do so even in circumstances where the copyright law would not protect creative expression."). The Secretary of Commerce, in an October 6, 1998, letter to Senator Orin Hatch, also expressed First Amendment concerns. See Letter from Secretary of Commerce William M. Daley to Orin Hatch, Chairman, Senate Judiciary Committee (Oct. 6, 1998) (on file with The George Washington Law Review) [hereinafter Daley Letter].
38. Memorandum from William Michael Treanor, Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice to William P. Marshall, Associate White House Counsel 23 (July 28, 1998) (on file with The George Washington Law Review) [hereinafter OLC Memo] ("H.R. 2652, by providing protection for facts, raises serious First Amendment concerns. It would restrict the ability of persons to use and disseminate factual materials that are not protected by copyright, and it arguably would do so even in circumstances where the copyright law would not protect creative expression."). The Secretary of Commerce, in an October 6, 1998, letter to Senator Orin Hatch, also expressed First Amendment concerns. See Letter from Secretary of Commerce William M. Daley to Orin Hatch, Chairman, Senate Judiciary Committee (Oct. 6, 1998) (on file with The George Washington Law Review) [hereinafter Daley Letter].
39. Memorandum from William Michael Treanor, Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice to William P. Marshall, Associate White House Counsel 23 (July 28, 1998) (on file with The George Washington Law Review) [hereinafter OLC Memo] ("H.R. 2652, by providing protection for facts, raises serious First Amendment concerns. It would restrict the ability of persons to use and disseminate factual materials that are not protected by copyright, and it arguably would do so even in circumstances where the copyright law would not protect creative expression."). The Secretary of Commerce, in an October 6, 1998, letter to Senator Orin Hatch, also expressed First Amendment concerns. See Letter from Secretary of Commerce William M. Daley to Orin Hatch, Chairman, Senate Judiciary Committee (Oct. 6, 1998) (on file with The George Washington Law Review) [hereinafter Daley Letter].
40. Memorandum from William Michael Treanor, Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice to William P. Marshall, Associate White House Counsel 23 (July 28, 1998) (on file with The George Washington Law Review) [hereinafter OLC Memo] ("H.R. 2652, by providing protection for facts, raises serious First Amendment concerns. It would restrict the ability of persons to use and disseminate factual materials that are not protected by copyright, and it arguably would do so even in circumstances where the copyright law would not protect creative expression."). The Secretary of Commerce, in an October 6, 1998, letter to Senator Orin Hatch, also expressed First Amendment concerns. See Letter from Secretary of Commerce William M. Daley to Orin Hatch, Chairman, Senate Judiciary Committee (Oct. 6, 1998) (on file with The George Washington Law Review) [hereinafter Daley Letter].
41. The exception is Congressman Zoe Lefren who dissented from the House Judiciary Committee's report on the bill, arguing that the bill conflicted with the First Amendment, exceeded Congress's enumerated powers, and was overbroad. See H.R. REP. No. 105-525, at 28-32 (1998) (dissenting views).
42. In Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) (per O'Connor, J.), for example, the Court expressly reconciled the Copyright Act and the First Amendment by upholding the lower court's assertion that: "copyright's idea/expression dichotomy 'strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression.' No author may copyright his ideas or the facts he narrates. 17 U.S.C. § 102(b)." Id. at 556 (citation omitted). The Court's reference to section 102(b) is to the 1976 statutory recognition of the previous common law idea-expression dichotomy. See 17 U.S.C. § 102(b) (1994). For more on both the idea-expression and fact-expression dichotomies, see WILLIAM PATRY, 1 COPYRIGHT LAW & PRACTICE 312-17 (1994).
43. See generally WILLIAM PATRY, THE FAIR USE PRIVILEGE IN COPYRIGHT LAW (2d ed. 1995). The privilege was statutorily recognized in the 1976 copyright act. See 17 U.S.C. § 107. Secretary of Commerce William Daley noted, in opposing H.R. 2652, that "the 'fair use' provisions are still weaker than the protection afforded under the Copyright Act - which is troubling both on policy and constitutional grounds." Daley Letter, supra note 22, at 1.
44. See generally WILLIAM PATRY, THE FAIR USE PRIVILEGE IN COPYRIGHT LAW (2d ed. 1995). The privilege was statutorily recognized in the 1976 copyright act. See 17 U.S.C. § 107. Secretary of Commerce William Daley noted, in opposing H.R. 2652, that "the 'fair use' provisions are still weaker than the protection afforded under the Copyright Act - which is troubling both on policy and constitutional grounds." Daley Letter, supra note 22, at 1.
45. See John O. McGinnis, The Once and Future Property-Based Vision of the First Amendment, 63 U. CHI. L. REV. 49, 69 (1996) (drawing a distinction between copyright, which vests individuals with "retention value" in information, and a First Amendment "use value" right to transmit uncopyrightable information); see also W.T. Rogers Co. v. Keene, 778 F.2d 334, 347 (7th Cir. 1985) ("Because trademarks do not have fixed time limits like copyrights and patents, other and vaguer methods are used to cut them off at the point where their value as information about product origin is exceeded by their cost in impeding competition."); Neil Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 311-13 (1996). For an extended discussion of the relationship between property and liberty, see Gerard F. Gaus, Property, Rights, and Freedom, 11 SOC. PHIL. & POL'Y 209 (1994). In a superficial effort to provide a patina of cover to unconstitutional legislation (without, of course, changing the unconstitutional nature of the bill), the House-passed version of H.R. 2652 contains a number of "permitted acts." See H.R. 2652, 105th Cong. § 1202 (1997). These acts are intended to give the impression that the public and nonprofit uses do not fall within the scope of prohibited acts. The rest of the bill, however, effectively renders these permitted acts nugatory. The Office of Legal Counsel of the Justice Department has persuasively and thoroughly picked apart the fallacies of this approach. See OLC Memo, supra note 22, at 4-9.
46. See John O. McGinnis, The Once and Future Property-Based Vision of the First Amendment, 63 U. CHI. L. REV. 49, 69 (1996) (drawing a distinction between copyright, which vests individuals with "retention value" in information, and a First Amendment "use value" right to transmit uncopyrightable information); see also W.T. Rogers Co. v. Keene, 778 F.2d 334, 347 (7th Cir. 1985) ("Because trademarks do not have fixed time limits like copyrights and patents, other and vaguer methods are used to cut them off at the point where their value as information about product origin is exceeded by their cost in impeding competition."); Neil Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 311-13 (1996). For an extended discussion of the relationship between property and liberty, see Gerard F. Gaus, Property, Rights, and Freedom, 11 SOC. PHIL. & POL'Y 209 (1994). In a superficial effort to provide a patina of cover to unconstitutional legislation (without, of course, changing the unconstitutional nature of the bill), the House-passed version of H.R. 2652 contains a number of "permitted acts." See H.R. 2652, 105th Cong. § 1202 (1997). These acts are intended to give the impression that the public and nonprofit uses do not fall within the scope of prohibited acts. The rest of the bill, however, effectively renders these permitted acts nugatory. The Office of Legal Counsel of the Justice Department has persuasively and thoroughly picked apart the fallacies of this approach. See OLC Memo, supra note 22, at 4-9.
47. See John O. McGinnis, The Once and Future Property-Based Vision of the First Amendment, 63 U. CHI. L. REV. 49, 69 (1996) (drawing a distinction between copyright, which vests individuals with "retention value" in information, and a First Amendment "use value" right to transmit uncopyrightable information); see also W.T. Rogers Co. v. Keene, 778 F.2d 334, 347 (7th Cir. 1985) ("Because trademarks do not have fixed time limits like copyrights and patents, other and vaguer methods are used to cut them off at the point where their value as information about product origin is exceeded by their cost in impeding competition."); Neil Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 311-13 (1996). For an extended discussion of the relationship between property and liberty, see Gerard F. Gaus, Property, Rights, and Freedom, 11 SOC. PHIL. & POL'Y 209 (1994). In a superficial effort to provide a patina of cover to unconstitutional legislation (without, of course, changing the unconstitutional nature of the bill), the House-passed version of H.R. 2652 contains a number of "permitted acts." See H.R. 2652, 105th Cong. § 1202 (1997). These acts are intended to give the impression that the public and nonprofit uses do not fall within the scope of prohibited acts. The rest of the bill, however, effectively renders these permitted acts nugatory. The Office of Legal Counsel of the Justice Department has persuasively and thoroughly picked apart the fallacies of this approach. See OLC Memo, supra note 22, at 4-9.
48. See John O. McGinnis, The Once and Future Property-Based Vision of the First Amendment, 63 U. CHI. L. REV. 49, 69 (1996) (drawing a distinction between copyright, which vests individuals with "retention value" in information, and a First Amendment "use value" right to transmit uncopyrightable information); see also W.T. Rogers Co. v. Keene, 778 F.2d 334, 347 (7th Cir. 1985) ("Because trademarks do not have fixed time limits like copyrights and patents, other and vaguer methods are used to cut them off at the point where their value as information about product origin is exceeded by their cost in impeding competition."); Neil Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 311-13 (1996). For an extended discussion of the relationship between property and liberty, see Gerard F. Gaus, Property, Rights, and Freedom, 11 SOC. PHIL. & POL'Y 209 (1994). In a superficial effort to provide a patina of cover to unconstitutional legislation (without, of course, changing the unconstitutional nature of the bill), the House-passed version of H.R. 2652 contains a number of "permitted acts." See H.R. 2652, 105th Cong. § 1202 (1997). These acts are intended to give the impression that the public and nonprofit uses do not fall within the scope of prohibited acts. The rest of the bill, however, effectively renders these permitted acts nugatory. The Office of Legal Counsel of the Justice Department has persuasively and thoroughly picked apart the fallacies of this approach. See OLC Memo, supra note 22, at 4-9.
49. See John O. McGinnis, The Once and Future Property-Based Vision of the First Amendment, 63 U. CHI. L. REV. 49, 69 (1996) (drawing a distinction between copyright, which vests individuals with "retention value" in information, and a First Amendment "use value" right to transmit uncopyrightable information); see also W.T. Rogers Co. v. Keene, 778 F.2d 334, 347 (7th Cir. 1985) ("Because trademarks do not have fixed time limits like copyrights and patents, other and vaguer methods are used to cut them off at the point where their value as information about product origin is exceeded by their cost in impeding competition."); Neil Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 311-13 (1996). For an extended discussion of the relationship between property and liberty, see Gerard F. Gaus, Property, Rights, and Freedom, 11 SOC. PHIL. & POL'Y 209 (1994). In a superficial effort to provide a patina of cover to unconstitutional legislation (without, of course, changing the unconstitutional nature of the bill), the House-passed version of H.R. 2652 contains a number of "permitted acts." See H.R. 2652, 105th Cong. § 1202 (1997). These acts are intended to give the impression that the public and nonprofit uses do not fall within the scope of prohibited acts. The rest of the bill, however, effectively renders these permitted acts nugatory. The Office of Legal Counsel of the Justice Department has persuasively and thoroughly picked apart the fallacies of this approach. See OLC Memo, supra note 22, at 4-9.
50. I do not use the term "structural" in the procedural sense that Professor John Hart Ely did in Democracy and Distrust: A Theory of Judicial Review (1980). See also Marci A. Hamilton, Discussion and Decisions: A Proposal to Replace the Myth of Self-rule with an Attorneyship Model of Representation, 69 N.Y.U. L. REV. 477, 502-08 (1994) (discussing Ely). Instead, I use the term "structure" in an "architectural" sense in which the various parts of the Constitution interrelate. This is the approach advocated by Professor Charles L. Black in his justly famous 1968 Edward Douglas White lecture series, published as Structure and Relationship in Constitutional Law (1969), and by Professor Laurence Tribe in Taking Text Seriously: Reflections on Free- Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221 (1995). Professor Black describes his approach as a "method of reasoning from structure and relation," BLACK, supra, at 22. This method must be contrasted with the "textual-explication" method, which consists of "interpretation of the commands embodied in particular texts." Id. at 15. The structural methodology that Professor Black advocates and which is used in this Article does not ignore the text; instead, it seeks to interpret the text in the context of the full range of vision provided by the Constitution as a whole, with what Professor Tribe has described as "peripheral vision." See Tribe, supra, at 1272; infra Part I.D. Professor Black also cautions that there need not be a sharp division between the two methods: "There is, moreover, a close and perpetual interworking between the textual and relational and structural modes of reasoning, for the structure and relations concerned are themselves created by the text, and inferences drawn from them must surely be controlled by the text." BLACK, supra, at 31. The traditional interpretation of the Patent and Copyright Clause of the Constitution rigidly follows the textual-explication method. See infra note 42 and accompanying text. The text of the Clause is examined and certain limitations are duly noted. The text of the Commerce Clause is then similarly examined. Because the Commerce Clause does not contain the limitations found in the Patent and Copyright Clause, the traditional approach argues that Congress may freely legislate intellectual property protection under the Commerce Clause that would be impermissible under the Patent and Copyright Clause. By contrast, the structural approach taken in this Article views the Patent and Copyright Clause as part of an overall constitutional structure. This Article also argues that the traditional view fails to comprehend the Supreme Court's reconceptualization of the Patent and Copyright Clause, according to which the power granted to Congress is to "promote the progress of science and the useful arts," and not solely to reward monopolies to authors and inventors. See infra text accompanying note 42. This leads to the conclusion that the Patent and Copyright Clause embodies principles of general limitation on Congress that apply regardless of the power under which Congress legislates. This Article focuses on the originality requirement as one such general limitation. See infra text accompanying notes 95-122. At the same time, this Article notes that general trademark protection, enacted under the Commerce Clause, does not conflict with Article I, Section 8, Clause 8 because the focus of such protection - the prevention of consumer confusion - lies outside of Congress's enumerated Article I, Section 8, Clause 8 power. See infra text accompanying notes 173-180.
51. I do not use the term "structural" in the procedural sense that Professor John Hart Ely did in Democracy and Distrust: A Theory of Judicial Review (1980). See also Marci A. Hamilton, Discussion and Decisions: A Proposal to Replace the Myth of Self-rule with an Attorneyship Model of Representation, 69 N.Y.U. L. REV. 477, 502-08 (1994) (discussing Ely). Instead, I use the term "structure" in an "architectural" sense in which the various parts of the Constitution interrelate. This is the approach advocated by Professor Charles L. Black in his justly famous 1968 Edward Douglas White lecture series, published as Structure and Relationship in Constitutional Law (1969), and by Professor Laurence Tribe in Taking Text Seriously: Reflections on Free- Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221 (1995). Professor Black describes his approach as a "method of reasoning from structure and relation," BLACK, supra, at 22. This method must be contrasted with the "textual-explication" method, which consists of "interpretation of the commands embodied in particular texts." Id. at 15. The structural methodology that Professor Black advocates and which is used in this Article does not ignore the text; instead, it seeks to interpret the text in the context of the full range of vision provided by the Constitution as a whole, with what Professor Tribe has described as "peripheral vision." See Tribe, supra, at 1272; infra Part I.D. Professor Black also cautions that there need not be a sharp division between the two methods: "There is, moreover, a close and perpetual interworking between the textual and relational and structural modes of reasoning, for the structure and relations concerned are themselves created by the text, and inferences drawn from them must surely be controlled by the text." BLACK, supra, at 31. The traditional interpretation of the Patent and Copyright Clause of the Constitution rigidly follows the textual-explication method. See infra note 42 and accompanying text. The text of the Clause is examined and certain limitations are duly noted. The text of the Commerce Clause is then similarly examined. Because the Commerce Clause does not contain the limitations found in the Patent and Copyright Clause, the traditional approach argues that Congress may freely legislate intellectual property protection under the Commerce Clause that would be impermissible under the Patent and Copyright Clause. By contrast, the structural approach taken in this Article views the Patent and Copyright Clause as part of an overall constitutional structure. This Article also argues that the traditional view fails to comprehend the Supreme Court's reconceptualization of the Patent and Copyright Clause, according to which the power granted to Congress is to "promote the progress of science and the useful arts," and not solely to reward monopolies to authors and inventors. See infra text accompanying note 42. This leads to the conclusion that the Patent and Copyright Clause embodies principles of general limitation on Congress that apply regardless of the power under which Congress legislates. This Article focuses on the originality requirement as one such general limitation. See infra text accompanying notes 95-122. At the same time, this Article notes that general trademark protection, enacted under the Commerce Clause, does not conflict with Article I, Section 8, Clause 8 because the focus of such protection - the prevention of consumer confusion - lies outside of Congress's enumerated Article I, Section 8, Clause 8 power. See infra text accompanying notes 173-180.
52. I do not use the term "structural" in the procedural sense that Professor John Hart Ely did in Democracy and Distrust: A Theory of Judicial Review (1980). See also Marci A. Hamilton, Discussion and Decisions: A Proposal to Replace the Myth of Self-rule with an Attorneyship Model of Representation, 69 N.Y.U. L. REV. 477, 502-08 (1994) (discussing Ely). Instead, I use the term "structure" in an "architectural" sense in which the various parts of the Constitution interrelate. This is the approach advocated by Professor Charles L. Black in his justly famous 1968 Edward Douglas White lecture series, published as Structure and Relationship in Constitutional Law (1969), and by Professor Laurence Tribe in Taking Text Seriously: Reflections on Free- Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221 (1995). Professor Black describes his approach as a "method of reasoning from structure and relation," BLACK, supra, at 22. This method must be contrasted with the "textual-explication" method, which consists of "interpretation of the commands embodied in particular texts." Id. at 15. The structural methodology that Professor Black advocates and which is used in this Article does not ignore the text; instead, it seeks to interpret the text in the context of the full range of vision provided by the Constitution as a whole, with what Professor Tribe has described as "peripheral vision." See Tribe, supra, at 1272; infra Part I.D. Professor Black also cautions that there need not be a sharp division between the two methods: "There is, moreover, a close and perpetual interworking between the textual and relational and structural modes of reasoning, for the structure and relations concerned are themselves created by the text, and inferences drawn from them must surely be controlled by the text." BLACK, supra, at 31. The traditional interpretation of the Patent and Copyright Clause of the Constitution rigidly follows the textual-explication method. See infra note 42 and accompanying text. The text of the Clause is examined and certain limitations are duly noted. The text of the Commerce Clause is then similarly examined. Because the Commerce Clause does not contain the limitations found in the Patent and Copyright Clause, the traditional approach argues that Congress may freely legislate intellectual property protection under the Commerce Clause that would be impermissible under the Patent and Copyright Clause. By contrast, the structural approach taken in this Article views the Patent and Copyright Clause as part of an overall constitutional structure. This Article also argues that the traditional view fails to comprehend the Supreme Court's reconceptualization of the Patent and Copyright Clause, according to which the power granted to Congress is to "promote the progress of science and the useful arts," and not solely to reward monopolies to authors and inventors. See infra text accompanying note 42. This leads to the conclusion that the Patent and Copyright Clause embodies principles of general limitation on Congress that apply regardless of the power under which Congress legislates. This Article focuses on the originality requirement as one such general limitation. See infra text accompanying notes 95-122. At the same time, this Article notes that general trademark protection, enacted under the Commerce Clause, does not conflict with Article I, Section 8, Clause 8 because the focus of such protection - the prevention of consumer confusion - lies outside of Congress's enumerated Article I, Section 8, Clause 8 power. See infra text accompanying notes 173-180.
53. I do not use the term "structural" in the procedural sense that Professor John Hart Ely did in Democracy and Distrust: A Theory of Judicial Review (1980). See also Marci A. Hamilton, Discussion and Decisions: A Proposal to Replace the Myth of Self-rule with an Attorneyship Model of Representation, 69 N.Y.U. L. REV. 477, 502-08 (1994) (discussing Ely). Instead, I use the term "structure" in an "architectural" sense in which the various parts of the Constitution interrelate. This is the approach advocated by Professor Charles L. Black in his justly famous 1968 Edward Douglas White lecture series, published as Structure and Relationship in Constitutional Law (1969), and by Professor Laurence Tribe in Taking Text Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221 (1995). Professor Black describes his approach as a "method of reasoning from structure and relation," BLACK, supra, at 22. This method must be contrasted with the "textual-explication" method, which consists of "interpretation of the commands embodied in particular texts." Id. at 15. The structural methodology that Professor Black advocates and which is used in this Article does not ignore the text; instead, it seeks to interpret the text in the context of the full range of vision provided by the Constitution as a whole, with what Professor Tribe has described as "peripheral vision." See Tribe, supra, at 1272; infra Part I.D. Professor Black also cautions that there need not be a sharp division between the two methods: "There is, moreover, a close and perpetual interworking between the textual and relational and structural modes of reasoning, for the structure and relations concerned are themselves created by the text, and inferences drawn from them must surely be controlled by the text." BLACK, supra, at 31. The traditional interpretation of the Patent and Copyright Clause of the Constitution rigidly follows the textual-explication method. See infra note 42 and accompanying text. The text of the Clause is examined and certain limitations are duly noted. The text of the Commerce Clause is then similarly examined. Because the Commerce Clause does not contain the limitations found in the Patent and Copyright Clause, the traditional approach argues that Congress may freely legislate intellectual property protection under the Commerce Clause that would be impermissible under the Patent and Copyright Clause. By contrast, the structural approach taken in this Article views the Patent and Copyright Clause as part of an overall constitutional structure. This Article also argues that the traditional view fails to comprehend the Supreme Court's reconceptualization of the Patent and Copyright Clause, according to which the power granted to Congress is to "promote the progress of science and the useful arts," and not solely to reward monopolies to authors and inventors. See infra text accompanying note 42. This leads to the conclusion that the Patent and Copyright Clause embodies principles of general limitation on Congress that apply regardless of the power under which Congress legislates. This Article focuses on the originality requirement as one such general limitation. See infra text accompanying notes 95-122. At the same time, this Article notes that general trademark protection, enacted under the Commerce Clause, does not conflict with Article I, Section 8, Clause 8 because the focus of such protection - the prevention of consumer confusion - lies outside of Congress's enumerated Article I, Section 8, Clause 8 power. See infra text accompanying notes 173-180.
54. I do not use the term "structural" in the procedural sense that Professor John Hart Ely did in Democracy and Distrust: A Theory of Judicial Review (1980). See also Marci A. Hamilton, Discussion and Decisions: A Proposal to Replace the Myth of Self-rule with an Attorneyship Model of Representation, 69 N.Y.U. L. REV. 477, 502-08 (1994) (discussing Ely). Instead, I use the term "structure" in an "architectural" sense in which the various parts of the Constitution interrelate. This is the approach advocated by Professor Charles L. Black in his justly famous 1968 Edward Douglas White lecture series, published as Structure and Relationship in Constitutional Law (1969), and by Professor Laurence Tribe in Taking Text Seriously: Reflections on Free- Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221 (1995). Professor Black describes his approach as a "method of reasoning from structure and relation," BLACK, supra, at 22. This method must be contrasted with the "textual-explication" method, which consists of "interpretation of the commands embodied in particular texts." Id. at 15. The structural methodology that Professor Black advocates and which is used in this Article does not ignore the text; instead, it seeks to interpret the text in the context of the full range of vision provided by the Constitution as a whole, with what Professor Tribe has described as "peripheral vision." See Tribe, supra, at 1272; infra Part I.D. Professor Black also cautions that there need not be a sharp division between the two methods: "There is, moreover, a close and perpetual interworking between the textual and relational and structural modes of reasoning, for the structure and relations concerned are themselves created by the text, and inferences drawn from them must surely be controlled by the text." BLACK, supra, at 31. The traditional interpretation of the Patent and Copyright Clause of the Constitution rigidly follows the textual-explication method. See infra note 42 and accompanying text. The text of the Clause is examined and certain limitations are duly noted. The text of the Commerce Clause is then similarly examined. Because the Commerce Clause does not contain the limitations found in the Patent and Copyright Clause, the traditional approach argues that Congress may freely legislate intellectual property protection under the Commerce Clause that would be impermissible under the Patent and Copyright Clause. By contrast, the structural approach taken in this Article views the Patent and Copyright Clause as part of an overall constitutional structure. This Article also argues that the traditional view fails to comprehend the Supreme Court's reconceptualization of the Patent and Copyright Clause, according to which the power granted to Congress is to "promote the progress of science and the useful arts," and not solely to reward monopolies to authors and inventors. See infra text accompanying note 42. This leads to the conclusion that the Patent and Copyright Clause embodies principles of general limitation on Congress that apply regardless of the power under which Congress legislates. This Article focuses on the originality requirement as one such general limitation. See infra text accompanying notes 95-122. At the same time, this Article notes that general trademark protection, enacted under the Commerce Clause, does not conflict with Article I, Section 8, Clause 8 because the focus of such protection - the prevention of consumer confusion - lies outside of Congress's enumerated Article I, Section 8, Clause 8 power. See infra text accompanying notes 173-180.
55. I do not use the term "structural" in the procedural sense that Professor John Hart Ely did in Democracy and Distrust: A Theory of Judicial Review (1980). See also Marci A. Hamilton, Discussion and Decisions: A Proposal to Replace the Myth of Self-rule with an Attorneyship Model of Representation, 69 N.Y.U. L. REV. 477, 502-08 (1994) (discussing Ely). Instead, I use the term "structure" in an "architectural" sense in which the various parts of the Constitution interrelate. This is the approach advocated by Professor Charles L. Black in his justly famous 1968 Edward Douglas White lecture series, published as Structure and Relationship in Constitutional Law (1969), and by Professor Laurence Tribe in Taking Text Seriously: Reflections on Free- Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221 (1995). Professor Black describes his approach as a "method of reasoning from structure and relation," BLACK, supra, at 22. This method must be contrasted with the "textual-explication" method, which consists of "interpretation of the commands embodied in particular texts." Id. at 15. The structural methodology that Professor Black advocates and which is used in this Article does not ignore the text; instead, it seeks to interpret the text in the context of the full range of vision provided by the Constitution as a whole, with what Professor Tribe has described as "peripheral vision." See Tribe, supra, at 1272; infra Part I.D. Professor Black also cautions that there need not be a sharp division between the two methods: "There is, moreover, a close and perpetual interworking between the textual and relational and structural modes of reasoning, for the structure and relations concerned are themselves created by the text, and inferences drawn from them must surely be controlled by the text." BLACK, supra, at 31. The traditional interpretation of the Patent and Copyright Clause of the Constitution rigidly follows the textual-explication method. See infra note 42 and accompanying text. The text of the Clause is examined and certain limitations are duly noted. The text of the Commerce Clause is then similarly examined. Because the Commerce Clause does not contain the limitations found in the Patent and Copyright Clause, the traditional approach argues that Congress may freely legislate intellectual property protection under the Commerce Clause that would be impermissible under the Patent and Copyright Clause. By contrast, the structural approach taken in this Article views the Patent and Copyright Clause as part of an overall constitutional structure. This Article also argues that the traditional view fails to comprehend the Supreme Court's reconceptualization of the Patent and Copyright Clause, according to which the power granted to Congress is to "promote the progress of science and the useful arts," and not solely to reward monopolies to authors and inventors. See infra text accompanying note 42. This leads to the conclusion that the Patent and Copyright Clause embodies principles of general limitation on Congress that apply regardless of the power under which Congress legislates. This Article focuses on the originality requirement as one such general limitation. See infra text accompanying notes 95-122. At the same time, this Article notes that general trademark protection, enacted under the Commerce Clause, does not conflict with Article I, Section 8, Clause 8 because the focus of such protection - the prevention of consumer confusion - lies outside of Congress's enumerated Article I, Section 8, Clause 8 power. See infra text accompanying notes 173-180.
56. I do not use the term "structural" in the procedural sense that Professor John Hart Ely did in Democracy and Distrust: A Theory of Judicial Review (1980). See also Marci A. Hamilton, Discussion and Decisions: A Proposal to Replace the Myth of Self-rule with an Attorneyship Model of Representation, 69 N.Y.U. L. REV. 477, 502-08 (1994) (discussing Ely). Instead, I use the term "structure" in an "architectural" sense in which the various parts of the Constitution interrelate. This is the approach advocated by Professor Charles L. Black in his justly famous 1968 Edward Douglas White lecture series, published as Structure and Relationship in Constitutional Law (1969), and by Professor Laurence Tribe in Taking Text Seriously: Reflections on Free- Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221 (1995). Professor Black describes his approach as a "method of reasoning from structure and relation," BLACK, supra, at 22. This method must be contrasted with the "textual-explication" method, which consists of "interpretation of the commands embodied in particular texts." Id. at 15. The structural methodology that Professor Black advocates and which is used in this Article does not ignore the text; instead, it seeks to interpret the text in the context of the full range of vision provided by the Constitution as a whole, with what Professor Tribe has described as "peripheral vision." See Tribe, supra, at 1272; infra Part I.D. Professor Black also cautions that there need not be a sharp division between the two methods: "There is, moreover, a close and perpetual interworking between the textual and relational and structural modes of reasoning, for the structure and relations concerned are themselves created by the text, and inferences drawn from them must surely be controlled by the text." BLACK, supra, at 31. The traditional interpretation of the Patent and Copyright Clause of the Constitution rigidly follows the textual-explication method. See infra note 42 and accompanying text. The text of the Clause is examined and certain limitations are duly noted. The text of the Commerce Clause is then similarly examined. Because the Commerce Clause does not contain the limitations found in the Patent and Copyright Clause, the traditional approach argues that Congress may freely legislate intellectual property protection under the Commerce Clause that would be impermissible under the Patent and Copyright Clause. By contrast, the structural approach taken in this Article views the Patent and Copyright Clause as part of an overall constitutional structure. This Article also argues that the traditional view fails to comprehend the Supreme Court's reconceptualization of the Patent and Copyright Clause, according to which the power granted to Congress is to "promote the progress of science and the useful arts," and not solely to reward monopolies to authors and inventors. See infra text accompanying note 42. This leads to the conclusion that the Patent and Copyright Clause embodies principles of general limitation on Congress that apply regardless of the power under which Congress legislates. This Article focuses on the originality requirement as one such general limitation. See infra text accompanying notes 95-122. At the same time, this
57. See infra notes 35-41 accompanying text.
58. See Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281, 290-321 (1970).
59. One may regard the term "negative right" as another way of saying that Congress has exceeded its enumerated powers. In New York v. United States, 505 U.S. 144 (1992), the Supreme Court confronted a similar semantic issue in connection with the Tenth Amendment. Justice O'Connor observed that [i]n some cases the Court has inquired into whether an Act of Congress is authorized by one of the powers delegated to Congress in Article I of the Constitution. . . . In other cases the Court has sought to determine whether an Act of Congress invades the province of state sovereignty reserved by the Tenth Amendment. Id. at 155. She concluded that [i]n the end, just as a cup may be half empty or half full, it makes no difference whether one views the question . . . as one of ascertaining the limits of the power delegated to the Federal Government under the affirmative provisions of the Constitution or one of discerning the core of sovereignty retained by the States under the Tenth Amendment. Id. at 159. The term "negative right" appears to be the better choice in this case because of the language in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), stating that the public has a "constitutional right" to copy unoriginal material. See id. at 349; see also infra text accompanying note 52. As discussed below, although one may view this right as analogous to a Tenth Amendment right, a better approach is to view it as a right arising from Article I, Section 8, Clause 8. See infra note 51.
60. See supra note 14; Feist, 499 U.S. at 350 ("[R]aw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science.").
61. See Letter from Professor Marci A. Hamilton to the Honorable Howard Coble, Chair, Subcomm. on Courts and Intellectual Property, House Comm. on the Judiciary 1-3 (Feb. 9, 1998) (on file with The George Washington Law Review) [hereinafter Hamilton Letter].
62. See Letter from Professor Marci A. Hamilton to the Honorable Howard Coble, Chair, Subcomm. on Courts and Intellectual Property, House Comm. on the Judiciary 1-3 (Feb. 9, 1998) (on file with The George Washington Law Review) [hereinafter Hamilton Letter].
63. See U.S. CONST, art. I, § 8, cl. 8.
64. Kendall v. Winsor, 62 U.S. (21 How.) 322, 327-28 (1858); see also Fogerty v. Fantasy, Inc., 510 U.S. 517, 524 (1994); Feist, 499 U.S. at 349-50; Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) ("[P]rivate motivation must ultimately serve the cause of promoting broad public availability of literature, music, and other arts."); Mazer v. Stein, 347 U.S. 201, 219 (1954) ("The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare."); United States v. Paramount Pictures, Inc. 334 U.S. 131, 158 (1948) ("The sole interest of the United States and the primary motivation for conferring the monopoly lie in the general benefits derived by the public from the labors of authors."). The Court has also noted the importance of protecting legitimate proprietary interests. See, e.g., Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 546 (1985).
65. See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989) (citation omitted). The Clause acts as a limitation by confining Congress's power to grant rights in either original material (copyright) or nonobvious material (patent).
66. See supra notes 27-32 and accompanying text.
67. This is, in fact, a literal reading of the text: "Congress shall have Power: 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." U.S. CONST. art. I, § 8, cl. 8. Exclusive rights for authors and inventors are described as a way to secure the promotion of the progress of science and the useful arts; they are not the direct subject of the grant.
68. See supra text accompanying notes 27-32; infra text accompanying notes 95-122.
69. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991).
70. id. at 350.
71. As one commentator succinctly described the Court's structural approach to the Clause, "the Court has interpreted the Copyright Clause to permit copyright in only those works which are original and to prohibit copyright in that which lacks originality. The two requirements mutually presuppose each other." Hamilton Letter, supra note 32, at 3.
72. See, e.g., Melville Nimmer & David Nimmer, 1 Nimmer on Copyright § 1.09 (1998).
73. See supra notes 35-41.
74. Pub. L. No. 94-553, 90 Stat. 2541 (codified at 17 U.S.C. §§ 101-1010 (1994)).
75. See id. § 102(a).
76. See, e.g., id. §§ 102(b) (ideas, methods of operation, etc., not protectible), 107 (fair use), 108 (library photocopying).
77. See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).
78. See The Collections of Information Antipiracy Act of 1997: Hearings on H.R. 2652 Before the Subcomm. on Courts and Intellectual Property (U.S. House of Representatives, Oct. 23, 1997) (visited on Jan. 14, 1999) (written statement of Coalition Against Database Piracy on H.R. 2652) ("congressional power"), available in 〈http://www.house.gov/judiciary/41117.htm〉; The "Collections of Information Antipiracy Act": Hearings on H.R. 2652 Before the Subcommittee on Courts and Intellectual Property (U.S. House of Representatives, Oct. 23, 1997) (statement of Marybeth Peters), available in 〈http://www.house.gov/judiciary/41112.htm〉.
79. See The Collections of Information Antipiracy Act of 1997: Hearings on H.R. 2652 Before the Subcomm. on Courts and Intellectual Property (U.S. House of Representatives, Oct. 23, 1997) (visited on Jan. 14, 1999) (written statement of Coalition Against Database Piracy on H.R. 2652) ("congressional power"), available in 〈http://www.house.gov/judiciary/41117.htm〉; The "Collections of Information Antipiracy Act": Hearings on H.R. 2652 Before the Subcommittee on Courts and Intellectual Property (U.S. House of Representatives, Oct. 23, 1997) (statement of Marybeth Peters), available in 〈http://www.house.gov/judiciary/41112.htm〉.
80. See Feist, 499 U.S. at 344-51; Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146-50 (1989).
81. By "copyright-like," I mean a property right to prevent acts equivalent to those granted under the Copyright Act, such as the right to prevent an unlicensed reproduction of a substantial portion of an unoriginal database. See 17 U.S.C. § 106 (1994) (right to reproduce copyrighted work in "copies or phonorecords").
82. See U.S. CONST, amend. X ("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."); Feist, 499 U.S. at 348-49 ("[A]ll facts . . . may not be copyrighted and are part of the public domain available to every person. . . . [N]o matter how much original authorship the work displays, the facts and ideas it exposes are free for the taking . . . ."). Given the enigmatic character of the Tenth Amendment and of the Supreme Court's jurisprudence in the area, see, e.g., New York v. United States, 505 U.S. 144, 160 (1992) ("The Court's [Tenth Amendment] jurisprudence . . . has traveled an unsteady path."), and the wildly confused lower court case law on copyright preemption of state unfair competition/misappropriation law, see, e.g., National Basketball Ass'n v. Motorola, Inc., 105 F.3d 841, 844-45 (2d Cir. 1997), I do not mean to stretch the point too far. The argument is that Congress's enumerated power is limited to granting exclusive rights to the 〉writings〉 of authors, with these terms being understood as containing a constitutionally dictated originality requirement. Congress was thus not given the power to grant exclusive copyright rights in unoriginal works. Any such power was retained by the states, or is a retained right of the people to be free from federal interference regarding the copying of unoriginal material. In the end, though, I believe the better approach is to view this right in the straightforward way that Justice O'Connor articulated in Feist - as a constitutional right based on Article I, Section 8, Clause 8. See Feist, 499 U.S. at 346. In addition to taking Feist at its word, this approach also has the distinct advantage of barring states from enacting legislation protecting unoriginal databases or achieving the same result through unfair competition/misappropria-tion common law.
83. Feist, 499 U.S. at 349 (emphasis added) (citation omitted).
84. Bonito Boats, 489 U.S. at 164-65 (citation omitted).
85. See, e.g., id. In Bonito Boats the Court reaffirmed its position that "'the stringent requirements for patent protection seek to ensure that ideas in the public domain remain there for the use of the public.'" Id. at 150 (quoting Aronson v. Quick Point Pencil Co., 440 U.S. 257, 262 (1979)). Although the Federal Circuit still has not "gotten it," see Leatherman Tool Group, Inc. v. Cooper Indus., Inc., 44 U.S.P.Q.2d (BNA) 1837, 1840-41 (Fed. Cir. 1997) (dismissing declaratory judgment counterclaim based on a right to copy public domain material under Bonito Boats), the Tenth Circuit has. In Vornado Air Circulation Sys., Inc. v. Duracraft Corp., 58 F.3d 1498 (10th Cir. 1995), plaintiff had been the design patentee of a household fan. See id. at 1500. Plaintiff also asserted (and otherwise qualified for) trade dress protection under section 43(a) of the Lanham (Trademark) Act for the fan's design. See id. at 1510. When the patent protection expired, defendant began marketing an identical fan and plaintiff sued for trade dress infringement. The district court granted plaintiff's motion for injunctive relief. The court of appeals reversed. Eschewing efforts to distinguish, factually, the case before it from previous Supreme Court rulings invalidating state efforts to bar the unauthorized copying of unpatented designs, Judge Anderson wrote, "we find it impossible to ignore the clear and continuing trend [those rulings] collectively manifest in favor of the public's right to copy." Id. at 1505. But see Thomas & Betts Corp. v. Panduit Corp., 138 F.3d 287 (7th Cir. 1998) (suggesting right to copy "is far from absolute"); id. at 289 (distinguishing Vornado).
86. Feist, 499 U.S. at 350.
87. Bonito Boats, 489 U.S. at 146 (quoting Graham v. John Deere, 383 U.S. 1, 6 (1996)).
88. One may object to this approach on the ground that the clause expressly mentions only "authors" and "writings," and not the public. See U.S. CONST. art. I, § 8, cl. 8. The terms "authors" and "writings," however, are undefined in the text. The Court has defined them by reference to originality, which is itself tied to promoting the progress of science. See infra text accompanying notes 95-122. Although one may, of course, disagree with the Court's interpretation of these terms, the Feist Court was grounding its construction of the public's right to copy in the text of the Clause.
89. Following the Marshall Court's initial, expansive view of the Commerce Clause in Gibbons v. Ogden, 9 U.S. (1 Wheat.) 1 (1824), the Supreme Court's jurisprudence focused almost entirely on instances in which the Commerce Clause acted as a limitation on state legislation that impedes interstate commerce. See, e.g., Kidd v. Pearson, 128 U.S. 1 (1888); Veazie v. Moor, 14 U.S. (1 How.) 568 (1853); see also United States v. Lopez, 514 U.S. 549, 569 (1995) (Kennedy & O'Connor, JJ., concurring) ("The simple fact was that in the early years of the Republic, Congress seldom perceived the necessity to exercise its power in circumstances where its authority would be called into question."); CHARLES WARREN, 2 THE SUPREME COURT IN UNITED STATES HISTORY 729-39 (rev. ed. 1935). During one period, the Court construed the Commerce Clause as not reaching so far as to permit congressional regulation of manufacturing, production, and mining. See, e.g., Carter v. Carter Coal Co., 298 U.S. 238, 304 (1936) (mining and production); United States v. E.C. Knight Co., 156 U.S. 1, 12 (1894) (sugar manufacturing). The Court rejected the manufacture-commerce distinction as unsound in Standard Oil Co. v. United States, 221 U.S. 1, 68-69 (1911), and the tide definitively turned in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 11 (1937); United States v. Darby, 322 U.S. 100, 106 (1941); and, Wickard v. Filburn, 317 U.S. 111, 118 (1942). See also Perez v. United States, 402 U.S. 146, 151 (1971); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256-57 (1964); Katzenbach v. McClung, 379 U.S. 294, 303 (1964). It seems fairly certain that in the early days of the Nation, trafficking in infringing books, maps, and charts across state lines would be considered commerce, thereby supporting congressional authority under the Commerce Clause. How a court would adjudicate a challenge to a Commerce Clause-based copyright act made by an infringer claiming that he or she only distributed intrastate is unknown. Cf. United States v. DeWitt, 9 U.S. (1 Wall.) 41, 45 (1869) (striking down federal law prohibiting all sales of naphtha and illuminating oils). It is conceivable that such a concern might have formed an additional reason for inclusion of the Patent and Copyright Clause.
90. See supra notes 21-22.
91. Another reason for adoption of the Clause, and for federal copyright, mentioned by Madison in the Federalist Papers, was a conclusion that the states could not effectively deal with the subject. See PATRY, supra note 24, at 24 & n.70 (quoting THE FEDERALIST No. 43, at 270-71 (James Madison) (Clinton Rossiter ed., 1961)). There is not necessarily an inconsistency between wanting a federal right versus a state right, and desiring the federal right to be a limited one.
92. Another reason for adoption of the Clause, and for federal copyright, mentioned by Madison in the Federalist Papers, was a conclusion that the states could not effectively deal with the subject. See PATRY, supra note 24, at 24 & n.70 (quoting THE FEDERALIST No. 43, at 270-71 (James Madison) (Clinton Rossiter ed., 1961)). There is not necessarily an inconsistency between wanting a federal right versus a state right, and desiring the federal right to be a limited one.
93. See, e.g., PATRY, supra note 24, at 23 (quoting 1788 Letter from Thomas Jefferson to James Madison describing monopolies as "sacrifices of the many to the few," and adding that "[w]here the power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions").
94. Id.
95. Id.
96. The "limited Times" restriction is one example. See U.S. CONST. art. I, § 8, cl. 8.
97. I am indebted to Professor Laurence Tribe for raising this counter-structural argument. See infra Part I.D.
98. 17 U.S. (4 Wheat.) 316 (1819).
99. See id. at 413.
100. See id. at 413-14 (rejecting the notion that it means "absolutely necessary").
101. id. at 418.
102. Of course, Congress need not specify the basis for its actions.
103. BLACK, supra note 27, at 14.
104. United States v. Lopez, 514 U.S. 549, 588-89 (1995) (Thomas, J., concurring).
105. Such as the inability to grant titles of nobility in Section 9, Clause 8. See U.S. CONST. art. I, § 9, cl. 8.
106. For example, Section 9, Clause 7, prohibits the drawing of money from the Treasury other than through an appropriations bill.
107. Such as, Section 9, Clause 2, habeas corpus, and Section 9, Clause 3, bills of attainder and ex post facto laws. See U.S. CONST. art. I, § 9.
108. See 17 U.S.C. § 106 (1994).
109. See id.
110. See id. (indicating that the section is subject to restrictions contained in sections 107 (fair use), 108 (library photocopying), 109 (first sale doctrine), 110 (public performance), and 111 (cable compulsory license)).
111. See infra notes 89-94 and accompanying text.
112. See, e.g., Bonito Boasts, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989); Graham v. John Deere Co., 383 U.S. 1, 5-6 (1966).
113. See infra text accompanying notes 89-94.
114. Tribe, supra note 27, at 1235-36. Professor Tribe's particular task was debunking a claim that Congress could approve bicamerally an international agreement under the "veto override" clause of Article I, Section 7, Clause 3 as a "'great and independent grant[ ] of power'" distinct from Article II. Id. at 1253 (quoting Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799, 186-88 (1995)). Professor Tribe demurred, arguing that "[t]he two articles must be read together; to ignore the whole of which both are parts constitutes argument, but not interpretation." Id. at 1254. This Article focuses not on the relationship between two articles of the Constitution, but instead focuses only on relationships among the cause of Article I, Section 8. The principle is the same, though: any claim of rights under Clause 3 must be considered in conjunction with Clause 8.
115. Tribe, supra note 27, at 1235-36. Professor Tribe's particular task was debunking a claim that Congress could approve bicamerally an international agreement under the "veto override" clause of Article I, Section 7, Clause 3 as a "'great and independent grant[ ] of power'" distinct from Article II. Id. at 1253 (quoting Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799, 186-88 (1995)). Professor Tribe demurred, arguing that "[t]he two articles must be read together; to ignore the whole of which both are parts constitutes argument, but not interpretation." Id. at 1254. This Article focuses not on the relationship between two articles of the Constitution, but instead focuses only on relationships among the cause of Article I, Section 8. The principle is the same, though: any claim of rights under Clause 3 must be considered in conjunction with Clause 8.
116. Tribe, supra note 27, at 1272. Professor Black adds that this search for the "relational properties" of the Constitution is more likely to "make sense - current, practical sense," and will require one to "deal with policy and not with grammar." BLACK, supra, note 27, at 15, 22, 23.
117. Tribe, supra note 27, at 1272. Professor Black adds that this search for the "relational properties" of the Constitution is more likely to "make sense - current, practical sense," and will require one to "deal with policy and not with grammar." BLACK, supra, note 27, at 15, 22, 23.
118. See U.S. CONST, art. I, § 8, cl. 4.
119. See id. cl. 8.
120. See id. cl. 12.
121. As Professor Hamilton has observed, "leading textbooks on constitutional law uniformly have ignored [copyright law]." Marci A. Hamilton, Copyright, Capitalism, and Commodification 12 (unpublished manuscript, on file with The George Washington Law Review).
122. See id.
123. For a criticism of Feist on this ground, see Paul J. Heald, The Vices of Originality, 1991 SUP. CT. REV. 143, 144.
124. See, e.g., Superintendent, Mass. Correctional Inst. v. Hill, 472 U.S. 445, 453 (1985).
125. Hamilton, supra note 87, at 12-13.
126. 455 U.S. 457 (1982).
127. See id. at 473.
128. Id. at 468-69 (citations omitted); see also Albright v. Oliver, 510 U.S. 266 (1994). In Albright, petitioner, who had been arrested without probable cause, sought relief for infringement of a substantive right under the Due Process Clause of the Fourteenth Amendment; the right asserted was one "to be free from criminal prosecution except upon probable cause." Id. at 268. The plurality opinion by Chief Justice Rehnquist declined to recognize this right, holding that it was the Fourth Amendment, and not substantive due process that provided the basis for Albright's claim. See id. at 271. In essence, Albright sought to use due process to evade restrictions on more specific rights, such as the right to be free from unreasonable searches and seizures. Justice Stevens, in dissent, objected that "[the Court had] never previously thought that the area of overlapping protection should constrain the independent protection provided by either." Id. at 310 (Stevens, J., dissenting). Albright may suggest that a similar effort to avoid restrictions in Article I, Section 8, Clause 8, by legislating under the Commerce Clause would be rebuffed. I am indebted to Professor Laurence Tribe for suggesting this argument.
129. On the other hand, the mere fact that Congress may not legislate rights to intellectual property under Article I, Section 8, Clause 8, does not mean Congress may never legislate intellectual property rights under the Commerce Clause. See infra text accompanying notes 173-192.
130. U.S. CONST. art. I, § 8, cl. 8.
131. The Supreme Court stated as much in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989).
132. Pub. L. No. 94-553, 90 Stat. 2541 (codified as amended at 17 U.S.C. §§ 101-1010(1994)); see also PATRY, supra note 21, at 89-120.
133. Pub. L. No. 94-553, 90 Stat. 2541 (codified as amended at 17 U.S.C. §§ 101-1010(1994)); see also PATRY, supra note 21, at 89-120.
134. 17 U.S.C. § 102(a).
135. A third possibility is "works." "Works" are better viewed, though, not as separate entities, but as the "original" creations of "authors."
136. S. REP. NO. 94-473, at 50 (1975); see also H.R. REP. NO. 94-1476, at 51 (1976).
137. 100 U.S. 82 (1879). In his Lopez concurring opinion, Justice Thomas oddly construed the Trade-mark Cases as standing for the proposition that "Congress cannot regulate internal commerce and thus may not establish national trademark registration." United States v. Lopez, 514 U.S. 549, 597-98 (1995) (Thomas, J., concurring).
138. See The Trade-mark Cases, 100 U.S. at 94.
139. See id. Because the originality requirement is constitutionally mandated, the role left to Congress in legislating protection remains an issue. The Feist Court did not strip Congress of its voice on all originality issues; instead, the Court only set a threshold standard. Congress is free to set a higher standard, or, in protecting particular types of works, to declare how the originality requirement must be satisfied. See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345-51 (1991). Indeed, in Feist, the Court agreed with this author that the statutory definition of "compilation" in 17 U.S.C. § 101 provided precisely such a guide to satisfaction of the statutory originality requirement. See id. at 356-57 (quoting William Patry, Copyright in Compilations of Facts (or Why the "White Pages" Are Not Copyrightable), 12 COMM. & L. 37, 51 (1990)).
140. See id. Because the originality requirement is constitutionally mandated, the role left to Congress in legislating protection remains an issue. The Feist Court did not strip Congress of its voice on all originality issues; instead, the Court only set a threshold standard. Congress is free to set a higher standard, or, in protecting particular types of works, to declare how the originality requirement must be satisfied. See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345-51 (1991). Indeed, in Feist, the Court agreed with this author that the statutory definition of "compilation" in 17 U.S.C. § 101 provided precisely such a guide to satisfaction of the statutory originality requirement. See id. at 356-57 (quoting William Patry, Copyright in Compilations of Facts (or Why the "White Pages" Are Not Copyrightable), 12 COMM. & L. 37, 51 (1990)).
141. The Trade-mark Cases, 100 U.S. at 94.
142. See The Register of Copyrights, DRAFT OF SECOND SUPPLEMENTARY REPORT ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW: 1975 REVISION BILL, ch. XI at 9 (1975) (noting lack of such a definition). Nor did any previous act contain such a definition. The 1976 Act does contain provisions stating that the author is the owner of copyright, and declaring the employer to be the author in the case of a work made for hire, but neither provision assists in determining how one decides the criteria for authorship. See 17 U.S.C. § 201(a).
143. 111 U.S. 53 (1884).
144. Id. at 58 (internal quotation marks omitted).
145. Id.
146. 499 U.S. 340 (1991).
147. Id. at 345.
148. See supra notes 107-108 and accompanying text.
149. Feist, 499 U.S. at 345.
150. See id.
151. Burrows-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).
152. Compare CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, Inc., 44 F.3d 61, 72-73 (2d Cir. 1994) (suggesting that some ideas may be "original," but nevertheless denying protection because of public need to use them), with Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1372 (5th Cir. 1981) (concluding that research is not protectible).
153. See, e.g., Leon v. Pacific Tel. & Tel. Serv., 91 F.2d 484, 486 (9th Cir. 1937); see also Feist, 499 U.S. at 352-56 (discussing cases involving sweat of the brow doctrine); Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865, 1872-81 (1990) (tracing line of cases back to English decisions in the early 1800s); id. at 1896-1900 (reviewing protectibility of works according to the sweat of the brow doctrine in cases decided under the 1976 Copyright Act).
154. See, e.g., Leon v. Pacific Tel. & Tel. Serv., 91 F.2d 484, 486 (9th Cir. 1937); see also Feist, 499 U.S. at 352-56 (discussing cases involving sweat of the brow doctrine); Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865, 1872-81 (1990) (tracing line of cases back to English decisions in the early 1800s); id. at 1896-1900 (reviewing protectibility of works according to the sweat of the brow doctrine in cases decided under the 1976 Copyright Act).
155. See, e.g., Leon v. Pacific Tel. & Tel. Serv., 91 F.2d 484, 486 (9th Cir. 1937); see also Feist, 499 U.S. at 352-56 (discussing cases involving sweat of the brow doctrine); Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865, 1872-81 (1990) (tracing line of cases back to English decisions in the early 1800s); id. at 1896-1900 (reviewing protectibility of works according to the sweat of the brow doctrine in cases decided under the 1976 Copyright Act).
156. See, e.g., Morris v. Ashbee, 7 L.R.-Eq. 34, 40 (1868); Kelly v. Morris, 1 L.R.-Eq. 697, 701 (1866); see also Jewelers' Circular Pub. Co. v. Keystone Pub. Co., 281 F. 83 (2d Cir. 1922); Sampson & Murdock Co. v. Seaver-Radford Co., 140 F. 539 (1st Cir. 1905); List Pub. Co. v. Keller, 30 F. 772 (S.D.N.Y. 1887).
157. See Hutchinson Tel. Co. v. Frontier Directory Co., 770 F.2d 128 (8th Cir. 1985); Leon v. Pacific Bell Tel. & Tel. Co., 91 F.2d 484 (9th Cir. 1937); Central Tel. Co. v. Johnson Publ'g Co., 526 F. Supp. 838 (D. Colo. 1981).
158. This is exactly what the district court found in a separate opinion in the Feist case. See Rural Tel. Serv. Co. v. Feist Publications, Inc., 737 F. Supp. 610, (D. Kan. 1990), rev'd, 957 F.2d 765 (10th Cir.), cert. denied, 506 U.S. 984 (1992).
159. In some larger cities, such as Manhattan, the white and yellow pages are separately bound because of space considerations.
160. See Feist, 499 U.S. at 363; Collections of Information Antipiracy Act: Hearings on H.R. 2652 Before the Subcomm. on Courts and Intellectual Property of the House Judiciary Comm. (U.S. House of Representatives, Feb. 12, 1998) (statement of William Hammock), available in 〈http://www.house.gov/judiciary/41146.htm〉. Of course, paying a license fee is also a possibility. Feist is a unique case in this regard, because defendant sought a license but was refused by plaintiff telephone company. See Feist, 499 U.S. at 343. In 1996 Congress added section 222(e) and (f)(3) to the Telecommunications Act to establish non-telephone directory publishers' right to nondiscriminatory and reasonable rates and conditions for listing information. See 47 U.S.C. § 223(e), (f)(3) (1996).
161. See Feist, 499 U.S. at 363; Collections of Information Antipiracy Act: Hearings on H.R. 2652 Before the Subcomm. on Courts and Intellectual Property of the House Judiciary Comm. (U.S. House of Representatives, Feb. 12, 1998) (statement of William Hammock), available in 〈http://www.house.gov/judiciary/41146.htm〉. Of course, paying a license fee is also a possibility. Feist is a unique case in this regard, because defendant sought a license but was refused by plaintiff telephone company. See Feist, 499 U.S. at 343. In 1996 Congress added section 222(e) and (f)(3) to the Telecommunications Act to establish non-telephone directory publishers' right to nondiscriminatory and reasonable rates and conditions for listing information. See 47 U.S.C. § 223(e), (f)(3) (1996).
162. See Feist, 499 U.S. at 363; Collections of Information Antipiracy Act: Hearings on H.R. 2652 Before the Subcomm. on Courts and Intellectual Property of the House Judiciary Comm. (U.S. House of Representatives, Feb. 12, 1998) (statement of William Hammock), available in 〈http://www.house.gov/judiciary/41146.htm〉. Of course, paying a license fee is also a possibility. Feist is a unique case in this regard, because defendant sought a license but was refused by plaintiff telephone company. See Feist, 499 U.S. at 343. In 1996 Congress added section 222(e) and (f)(3) to the Telecommunications Act to establish non-telephone directory publishers' right to nondiscriminatory and reasonable rates and conditions for listing information. See 47 U.S.C. § 223(e), (f)(3) (1996).
163. Feist, 499 U.S. at 354.
164. Id. at 347 (citation omitted). Professors Wendy Gordon and Sam Postbrief have criticized this holding as "naive," asserting that many "facts" are "[ ]filtered by the observer's judgment, purposes, and presuppositions. Further, most of the facts in a phone book - names, addresses, and phone numbers - are created rather than found." Wendy J. Gordon & Sam Postbrief, On Commodifying Intangibles, 10 YALE J.L. & HUMAN. 135, 143-44 (1998). Unlike Professors Gordon and Postbrief, I do not see how my parents, having given me my name, nor the city assigning the name of my street address, aid the telephone company in its claim that it created those facts in my telephone listing.
165. Feist, 499 U.S. at 347-48.
166. Id. at 349 (quoting Harper & Row Publishers v. Nation Enters., 471 U.S. 539, 589 (1985) (Brennan, J., dissenting)).
167. Bonito Boats, Inc. v. Thundercraft Boats, Inc., 489 U.S. 141 (1990).
168. Tribe, supra note 27, at 1236.
169. BLACK, supra note 27, at 23.
170. See supra note 27, for a discussion of the "close and perpetual interworking between the textual and relational and structural modes of reasoning," BLACK, supra note 27, at 31.
171. Feist, 499 U.S. at 350. At the same time, however, it must be acknowledged that in neither Bonito Boats nor Feist was the Court faced with a challenge to Congress's power to enact copyright-like legislation in unoriginal material under the Commerce Clause. In Bonito Boats, the Court was faced with asserted Supremacy Clause preemption of a state law that conflicted with federal patent policy. See Bonito Boats, 489 U.S. at 143-44. In Feist the Court was concerned with setting the constitutional boundaries of copyright protection. See Feist, 499 U.S. at 340. Nevertheless, for the reasons explained in the text, the broad - and consistent - views announced in both cases evidence a vision of general constitutional principles that are, in my opinion, directly applicable to the issue at hand.
172. Professor Hamilton has insightfully tied together the originality requirement and First Amendment concerns by noting that the Copyright Clause is the constitutional mechanism designed to further the creation of the "new." She indicates that copyright law places a higher value on the new and thereby devalues redundancy and works that lack originality. See Hamilton, supra note 87, at 24-30; see also OLC Memo, supra note 22, at 21-24.
173. Professor Hamilton has insightfully tied together the originality requirement and First Amendment concerns by noting that the Copyright Clause is the constitutional mechanism designed to further the creation of the "new." She indicates that copyright law places a higher value on the new and thereby devalues redundancy and works that lack originality. See Hamilton, supra note 87, at 24-30; see also OLC Memo, supra note 22, at 21-24.
174. Feist, 499 U.S. at 348-49 (citations omitted).
175. See supra text accompanying notes 27-32.
176. See, e.g., Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710, 746-47 (1917); Carol M. Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73 (1985) (reviewing Locke and the just desert theory in the context of wild animals, adverse possession, and the like). For application of the Hohfeldian concepts of jural relations to copyright, see, e.g., Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 STAN. L. REV. 1343, 1354-60, 1366 (1989). Professor Gordon explains that section 106 of the Copyright Act "constitutes a simultaneous award of Hohfeldian rights, privileges, and powers over the enumerated uses." Id. at 1366. For syntheses of Hohfeld and Calabresi & Melamed, see, e.g., Gordon, supra note 124; Madeline Morris, The Structure of Entitlements, 78 CORNELL L. REV. 822 (1993). For an application of the Coase Theorem to intellectual property rights, see Robert P. Merges, Of Property Rules, Coase, and Intellectual Property, 94 COLUM. L. REV. 2655 (1994). Professor Marci Hamilton has recently analyzed the commodification concept (the ability of a product to be distinguished from its producer) from a different perspective. Arguing that U.S. copyright law favors commodification and distribution over the producer, Professor Hamilton questions the soundness of the Hegelian-romantic view of intellectual property, which conceives of the author's property as an extension of the authority. The originality requirement, under Professor Hamilton's approach, "foregrounds products and backgrounds producers. . . . In sum, the marketplace is a marketplace of works, rather than creators." Hamilton, supra note 87, at 25-26. For a series of essays on the romantic view of authorship, see THE CONSTRUCTION OF AUTHORSHIP: TEXTUAL APPROPRIATION IN LAW AND LITERATURE (Martha Woodmansee & Peter Jaszi eds., 1994).
177. See, e.g., Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710, 746-47 (1917); Carol M. Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73 (1985) (reviewing Locke and the just desert theory in the context of wild animals, adverse possession, and the like). For application of the Hohfeldian concepts of jural relations to copyright, see, e.g., Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 STAN. L. REV. 1343, 1354-60, 1366 (1989). Professor Gordon explains that section 106 of the Copyright Act "constitutes a simultaneous award of Hohfeldian rights, privileges, and powers over the enumerated uses." Id. at 1366. For syntheses of Hohfeld and Calabresi & Melamed, see, e.g., Gordon, supra note 124; Madeline Morris, The Structure of Entitlements, 78 CORNELL L. REV. 822 (1993). For an application of the Coase Theorem to intellectual property rights, see Robert P. Merges, Of Property Rules, Coase, and Intellectual Property, 94 COLUM. L. REV. 2655 (1994). Professor Marci Hamilton has recently analyzed the commodification concept (the ability of a product to be distinguished from its producer) from a different perspective. Arguing that U.S. copyright law favors commodification and distribution over the producer, Professor Hamilton questions the soundness of the Hegelian-romantic view of intellectual property, which conceives of the author's property as an extension of the authority. The originality requirement, under Professor Hamilton's approach, "foregrounds products and backgrounds producers. . . . In sum, the marketplace is a marketplace of works, rather than creators." Hamilton, supra note 87, at 25-26. For a series of essays on the romantic view of authorship, see THE CONSTRUCTION OF AUTHORSHIP: TEXTUAL APPROPRIATION IN LAW AND LITERATURE (Martha Woodmansee & Peter Jaszi eds., 1994).
178. See, e.g., Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710, 746-47 (1917); Carol M. Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73 (1985) (reviewing Locke and the just desert theory in the context of wild animals, adverse possession, and the like). For application of the Hohfeldian concepts of jural relations to copyright, see, e.g., Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 STAN. L. REV. 1343, 1354-60, 1366 (1989). Professor Gordon explains that section 106 of the Copyright Act "constitutes a simultaneous award of Hohfeldian rights, privileges, and powers over the enumerated uses." Id. at 1366. For syntheses of Hohfeld and Calabresi & Melamed, see, e.g., Gordon, supra note 124; Madeline Morris, The Structure of Entitlements, 78 CORNELL L. REV. 822 (1993). For an application of the Coase Theorem to intellectual property rights, see Robert P. Merges, Of Property Rules, Coase, and Intellectual Property, 94 COLUM. L. REV. 2655 (1994). Professor Marci Hamilton has recently analyzed the commodification concept (the ability of a product to be distinguished from its producer) from a different perspective. Arguing that U.S. copyright law favors commodification and distribution over the producer, Professor Hamilton questions the soundness of the Hegelian-romantic view of intellectual property, which conceives of the author's property as an extension of the authority. The originality requirement, under Professor Hamilton's approach, "foregrounds products and backgrounds producers. . . . In sum, the marketplace is a marketplace of works, rather than creators." Hamilton, supra note 87, at 25-26. For a series of essays on the romantic view of authorship, see THE CONSTRUCTION OF AUTHORSHIP: TEXTUAL APPROPRIATION IN LAW AND LITERATURE (Martha Woodmansee & Peter Jaszi eds., 1994).
179. See, e.g., Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710, 746-47 (1917); Carol M. Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73 (1985) (reviewing Locke and the just desert theory in the context of wild animals, adverse possession, and the like). For application of the Hohfeldian concepts of jural relations to copyright, see, e.g., Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 STAN. L. REV. 1343, 1354-60, 1366 (1989). Professor Gordon explains that section 106 of the Copyright Act "constitutes a simultaneous award of Hohfeldian rights, privileges, and powers over the enumerated uses." Id. at 1366. For syntheses of Hohfeld and Calabresi & Melamed, see, e.g., Gordon, supra note 124; Madeline Morris, The Structure of Entitlements, 78 CORNELL L. REV. 822 (1993). For an application of the Coase Theorem to intellectual property rights, see Robert P. Merges, Of Property Rules, Coase, and Intellectual Property, 94 COLUM. L. REV. 2655 (1994). Professor Marci Hamilton has recently analyzed the commodification concept (the ability of a product to be distinguished from its producer) from a different perspective. Arguing that U.S. copyright law favors commodification and distribution over the producer, Professor Hamilton questions the soundness of the Hegelian-romantic view of intellectual property, which conceives of the author's property as an extension of the authority. The originality requirement, under Professor Hamilton's approach, "foregrounds products and backgrounds producers. . . . In sum, the marketplace is a marketplace of works, rather than creators." Hamilton, supra note 87, at 25-26. For a series of essays on the romantic view of authorship, see THE CONSTRUCTION OF AUTHORSHIP: TEXTUAL APPROPRIATION IN LAW AND LITERATURE (Martha Woodmansee & Peter Jaszi eds., 1994).
180. See, e.g., Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710, 746-47 (1917); Carol M. Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73 (1985) (reviewing Locke and the just desert theory in the context of wild animals, adverse possession, and the like). For application of the Hohfeldian concepts of jural relations to copyright, see, e.g., Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 STAN. L. REV. 1343, 1354-60, 1366 (1989). Professor Gordon explains that section 106 of the Copyright Act "constitutes a simultaneous award of Hohfeldian rights, privileges, and powers over the enumerated uses." Id. at 1366. For syntheses of Hohfeld and Calabresi & Melamed, see, e.g., Gordon, supra note 124; Madeline Morris, The Structure of Entitlements, 78 CORNELL L. REV. 822 (1993). For an application of the Coase Theorem to intellectual property rights, see Robert P. Merges, Of Property Rules, Coase, and Intellectual Property, 94 COLUM. L. REV. 2655 (1994). Professor Marci Hamilton has recently analyzed the commodification concept (the ability of a product to be distinguished from its producer) from a different perspective. Arguing that U.S. copyright law favors commodification and distribution over the producer, Professor Hamilton questions the soundness of the Hegelian-romantic view of intellectual property, which conceives of the author's property as an extension of the authority. The originality requirement, under Professor Hamilton's approach, "foregrounds products and backgrounds producers. . . . In sum, the marketplace is a marketplace of works, rather than creators." Hamilton, supra note 87, at 25-26. For a series of essays on the romantic view of authorship, see THE CONSTRUCTION OF AUTHORSHIP: TEXTUAL APPROPRIATION IN LAW AND LITERATURE (Martha Woodmansee & Peter Jaszi eds., 1994).
181. See, e.g., Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710, 746-47 (1917); Carol M. Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73 (1985) (reviewing Locke and the just desert theory in the context of wild animals, adverse possession, and the like). For application of the Hohfeldian concepts of jural relations to copyright, see, e.g., Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 STAN. L. REV. 1343, 1354-60, 1366 (1989). Professor Gordon explains that section 106 of the Copyright Act "constitutes a simultaneous award of Hohfeldian rights, privileges, and powers over the enumerated uses." Id. at 1366. For syntheses of Hohfeld and Calabresi & Melamed, see, e.g., Gordon, supra note 124; Madeline Morris, The Structure of Entitlements, 78 CORNELL L. REV. 822 (1993). For an application of the Coase Theorem to intellectual property rights, see Robert P. Merges, Of Property Rules, Coase, and Intellectual Property, 94 COLUM. L. REV. 2655 (1994). Professor Marci Hamilton has recently analyzed the commodification concept (the ability of a product to be distinguished from its producer) from a different perspective. Arguing that U.S. copyright law favors commodification and distribution over the producer, Professor Hamilton questions the soundness of the Hegelian-romantic view of intellectual property, which conceives of the author's property as an extension of the authority. The originality requirement, under Professor Hamilton's approach, "foregrounds products and backgrounds producers. . . . In sum, the marketplace is a marketplace of works, rather than creators." Hamilton, supra note 87, at 25-26. For a series of essays on the romantic view of authorship, see THE CONSTRUCTION OF AUTHORSHIP: TEXTUAL APPROPRIATION IN LAW AND LITERATURE (Martha Woodmansee & Peter Jaszi eds., 1994).
182. See, e.g., Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710, 746-47 (1917); Carol M. Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73 (1985) (reviewing Locke and the just desert theory in the context of wild animals, adverse possession, and the like). For application of the Hohfeldian concepts of jural relations to copyright, see, e.g., Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 STAN. L. REV. 1343, 1354-60, 1366 (1989). Professor Gordon explains that section 106 of the Copyright Act "constitutes a simultaneous award of Hohfeldian rights, privileges, and powers over the enumerated uses." Id. at 1366. For syntheses of Hohfeld and Calabresi & Melamed, see, e.g., Gordon, supra note 124; Madeline Morris, The Structure of Entitlements, 78 CORNELL L. REV. 822 (1993). For an application of the Coase Theorem to intellectual property rights, see Robert P. Merges, Of Property Rules, Coase, and Intellectual Property, 94 COLUM. L. REV. 2655 (1994). Professor Marci Hamilton has recently analyzed the commodification concept (the ability of a product to be distinguished from its producer) from a different perspective. Arguing that U.S. copyright law favors commodification and distribution over the producer, Professor Hamilton questions the soundness of the Hegelian-romantic view of intellectual property, which conceives of the author's property as an extension of the authority. The originality requirement, under Professor Hamilton's approach, "foregrounds products and backgrounds producers. . . . In sum, the marketplace is a marketplace of works, rather than creators." Hamilton, supra note 87, at 25-26. For a series of essays on the romantic view of authorship, see THE CONSTRUCTION OF AUTHORSHIP: TEXTUAL APPROPRIATION IN LAW AND LITERATURE (Martha Woodmansee & Peter Jaszi eds., 1994).
183. See, e.g., Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710, 746-47 (1917); Carol M. Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73 (1985) (reviewing Locke and the just desert theory in the context of wild animals, adverse possession, and the like). For application of the Hohfeldian concepts of jural relations to copyright, see, e.g., Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 STAN. L. REV. 1343, 1354-60, 1366 (1989). Professor Gordon explains that section 106 of the Copyright Act "constitutes a simultaneous award of Hohfeldian rights, privileges, and powers over the enumerated uses." Id. at 1366. For syntheses of Hohfeld and Calabresi & Melamed, see, e.g., Gordon, supra note 124; Madeline Morris, The Structure of Entitlements, 78 CORNELL L. REV. 822 (1993). For an application of the Coase Theorem to intellectual property rights, see Robert P. Merges, Of Property Rules, Coase, and Intellectual Property, 94 COLUM. L. REV. 2655 (1994). Professor Marci Hamilton has recently analyzed the commodification concept (the ability of a product to be distinguished from its producer) from a different perspective. Arguing that U.S. copyright law favors commodification and distribution over the producer, Professor Hamilton questions the soundness of the Hegelian-romantic view of intellectual property, which conceives of the author's property as an extension of the authority. The originality requirement, under Professor Hamilton's approach, "foregrounds products and backgrounds producers. . . . In sum, the marketplace is a marketplace of works, rather than creators." Hamilton, supra note 87, at 25-26. For a series of essays on the romantic view of authorship, see THE CONSTRUCTION OF AUTHORSHIP: TEXTUAL APPROPRIATION IN LAW AND LITERATURE (Martha Woodmansee & Peter Jaszi eds., 1994).
184. Then-Professor (now Justice) Breyer warned against this danger: The . . . claim for special consideration for authors rests upon an intuitive, unanalyzed feeling that an author's book is his "property." But why do we have such a feeling? An intellectual creation differs radically from land and chattels. Since ideas are infinitely divisible, property rights are not needed to prevent congestion, interference, or strife. Nor does the fact that the book is the author's creation seem a sufficient reason for making it his property. We do not ordinarily create or modify property rights, nor even reward compensation, solely on the basis of labor expended. Breyer, supra note 29, at 288-89; see also Professor Wendy Gordon's cautionary note: Value exists. It is a fact. It can arise from law, and much of law aims at creating more value in the world. But value can also arise in spite of law (consider, for example, the fortunes that bootleggers made during the Roaring Twenties), or in the law's interstices. When a particular value arises despite a lack of explicit legal protection, its possessors often ask courts or legislatures to give them a legal entitlement to preserve and further exploit that value. Typically, the holders demand (1) a liberty to employ the valued thing; (2) a right to exclude others from using it; (3) a power to transfer the rights of exclusion and liberties of use to a market buyer. Taken together, these three entitlements - to use, to exclude, and to alienate - are recognizable as Property. Gordon, supra note 124, at 136.
185. Then-Professor (now Justice) Breyer warned against this danger: The . . . claim for special consideration for authors rests upon an intuitive, unanalyzed feeling that an author's book is his "property." But why do we have such a feeling? An intellectual creation differs radically from land and chattels. Since ideas are infinitely divisible, property rights are not needed to prevent congestion, interference, or strife. Nor does the fact that the book is the author's creation seem a sufficient reason for making it his property. We do not ordinarily create or modify property rights, nor even reward compensation, solely on the basis of labor expended. Breyer, supra note 29, at 288-89; see also Professor Wendy Gordon's cautionary note: Value exists. It is a fact. It can arise from law, and much of law aims at creating more value in the world. But value can also arise in spite of law (consider, for example, the fortunes that bootleggers made during the Roaring Twenties), or in the law's interstices. When a particular value arises despite a lack of explicit legal protection, its possessors often ask courts or legislatures to give them a legal
186. Kenneth Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325, 329 (1980).
187. Compare, e.g., Stephen L. Carter, Does it Matter Whether Intellectual Property Is Property?, 68 CHI.-KENT L. REV. 715 (1993), with Frank H. Easterbrook, Intellectual Property Is Still Property, 13 HARV. J.L. & PUB. POL'Y 108 (1990), and Marci A. Hamilton, Appropriation Art and the Imminent Decline in Authorial Control over Copyrighted Works, 42 J. COPYRIGHT SOC'Y 93, 109 (1994).
188. Compare, e.g., Stephen L. Carter, Does it Matter Whether Intellectual Property Is Property?, 68 CHI.-KENT L. REV. 715 (1993), with Frank H. Easterbrook, Intellectual Property Is Still Property, 13 HARV. J.L. & PUB. POL'Y 108 (1990), and Marci A. Hamilton, Appropriation Art and the Imminent Decline in Authorial Control over Copyrighted Works, 42 J. COPYRIGHT SOC'Y 93, 109 (1994).
189. Compare, e.g., Stephen L. Carter, Does it Matter Whether Intellectual Property Is Property?, 68 CHI.-KENT L. REV. 715 (1993), with Frank H. Easterbrook, Intellectual Property Is Still Property, 13 HARV. J.L. & PUB. POL'Y 108 (1990), and Marci A. Hamilton, Appropriation Art and the Imminent Decline in Authorial Control over Copyrighted Works, 42 J. COPYRIGHT SOC'Y 93, 109 (1994).
190. See Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834); see also PATRY, supra note 21, at 34- 36 (discussing Wheaton). In International News Service v. Associated Press, 248 U.S. 215 (1918), the Court upheld, under a federal common law misappropriation theory, a challenge to a competitor's theft of "hot news." See id. at 240. Just twenty years later Erie R.R. v. Tompkins, 304 U.S. 62 (1938) (holding that there is no general federal common law), overruled the basis for INS. See INS, 248 U.S. at 78. The viability of the INS "hot news" protection under state law is hotly debated, see, e.g., National Basketball Assoc. v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997), and is outside the scope of this Article. A footnote in Feist makes reference to the INS opinion, noting that the plaintiff had prevailed on "noncopyright grounds that are not relevant here." Feist Publications, Inc. v. Rural Tel. Co., 499 U.S. 340, 354 n.* (1991). It would be a very far stretch to conclude from this brief, historical observation that the Court was implying that misappropriation protection survives. It would be an even further stretch to argue that a quote in Feist from a treatise writer on the issue of sweat of the brow copyright protection suggests that the Court believes misappropriation causes of action might still exist. The quote reads: "'Protection for the fruits of [the sweat of the brow] . . . may in certain circumstances be available . . . .'" Feist, 499 U.S. at 354 (quoting NIMMER & NIMMER, supra note 42, § 3.04, at 3-23). Whatever the Court may decide in a case brought before it on this issue, it surely will not feel constrained by having quoted from a treatise writer in a different case on a different issue. On the contrary, the best guide to the Court's thinking is its decision the prior year in Bonito Boats, in which Justice O'Connor, for a unanimous Court, wrote that the focus of unfair competition is "on the protection of consumers, not on the protection of producers as an incentive to product innovation." Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 157 (1989) (emphasis added). The "protection of producers as an incentive to product innovation" is precisely the prohibited focus of H.R. 2652. But even reading the precedent in the light most favorable to the proponents of H.R. 2652 - that an INS-type misappropriation cause of action still exists - the conduct H.R. 2652 reaches is light years away from the INS facts. Far from being concerned with "hot news," and a right limited in hours, H.R. 2652 protects ordinary facts and information, and in perpetuity. INS offers no support for H.R. 2652.
191. See Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834); see also PATRY, supra note 21, at 34-36 (discussing Wheaton). In International News Service v. Associated Press, 248 U.S. 215 (1918), the Court upheld, under a federal common law misappropriation theory, a challenge to a competitor's theft of "hot news." See id. at 240. Just twenty years later Erie R.R. v. Tompkins, 304 U.S. 62 (1938) (holding that there is no general federal common law), overruled the basis for INS. See INS, 248 U.S. at 78. The viability of the INS "hot news" protection under state law is hotly debated, see, e.g., National Basketball Assoc. v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997), and is outside the scope of this Article. A footnote in Feist makes reference to the INS opinion, noting that the plaintiff had prevailed on "noncopyright grounds that are not relevant here." Feist Publications, Inc. v. Rural Tel. Co., 499 U.S. 340, 354 n.* (1991). It would be a very far stretch to conclude from this brief, historical observation that the Court was implying that misappropriation protection survives. It would be an even further stretch to argue that a quote in Feist from a treatise writer on the issue of sweat of the brow copyright protection suggests that the Court believes misappropriation causes of action might still exist. The quote reads: "'Protection for the fruits of [the sweat of the brow] . . . may in certain circumstances be available . . . .'" Feist, 499 U.S. at 354 (quoting NIMMER & NIMMER, supra note 42, § 3.04, at 3-23). Whatever the Court may decide in a case brought before it on this issue, it surely will not feel constrained by having quoted from a treatise writer in a different case on a different issue. On the contrary, the best guide to the Court's thinking is its decision the prior year in Bonito Boats, in which Justice O'Connor, for a unanimous Court, wrote that the focus of unfair competition is "on the protection of consumers, not on the protection of producers as an incentive to product innovation." Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 157 (1989) (emphasis added). The "protection of producers as an incentive to product innovation" is precisely the prohibited focus of H.R. 2652. But even reading the precedent in the light most favorable to the proponents of H.R. 2652 - that an INS-type misappropriation cause of action still exists - the conduct H.R. 2652 reaches is light years away from the INS facts. Far from being concerned with "hot news," and a right limited in hours, H.R. 2652 protects ordinary facts and information, and in perpetuity. INS offers no support for H.R. 2652.
192. See Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834); see also PATRY, supra note 21, at 34- 36 (discussing Wheaton). In International News Service v. Associated Press, 248 U.S. 215 (1918), the Court upheld, under a federal common law misappropriation theory, a challenge to a competitor's theft of "hot news." See id. at 240. Just twenty years later Erie R.R. v. Tompkins, 304 U.S. 62 (1938) (holding that there is no general federal common law), overruled the basis for INS. See INS, 248 U.S. at 78. The viability of the INS "hot news" protection under state law is hotly debated, see, e.g., National Basketball Assoc. v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997), and is outside the scope of this Article. A footnote in Feist makes reference to the INS opinion, noting that the plaintiff had prevailed on "noncopyright grounds that are not relevant here." Feist Publications, Inc. v. Rural Tel. Co., 499 U.S. 340, 354 n.* (1991). It would be a very far stretch to conclude from this brief, historical observation that the Court was implying that misappropriation protection survives. It would be an even further stretch to argue that a quote in Feist from a treatise writer on the issue of sweat of the brow copyright protection suggests that the Court believes misappropriation causes of action might still exist. The quote reads: "'Protection for the fruits of [the sweat of the brow] . . . may in certain circumstances be available . . . .'" Feist, 499 U.S. at 354 (quoting NIMMER & NIMMER, supra note 42, § 3.04, at 3-23). Whatever the Court may decide in a case brought before it on this issue, it surely will not feel constrained by having quoted from a treatise writer in a different case on a different issue. On the contrary, the best guide to the Court's thinking is its decision the prior year in Bonito Boats, in which Justice O'Connor, for a unanimous Court, wrote that the focus of unfair competition is "on the protection of consumers, not on the protection of producers as an incentive to product innovation." Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 157 (1989) (emphasis added). The "protection of producers as an incentive to product innovation" is precisely the prohibited focus of H.R. 2652. But even reading the precedent in the light most favorable to the proponents of H.R. 2652 - that an INS-type misappropriation cause of action still exists - the conduct H.R. 2652 reaches is light years away from the INS facts. Far from being concerned with "hot news," and a right limited in hours, H.R. 2652 protects ordinary facts and information, and in perpetuity. INS offers no support for H.R. 2652.
193. See Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834); see also PATRY, supra note 21, at 34- 36 (discussing Wheaton). In International News Service v. Associated Press, 248 U.S. 215 (1918), the Court upheld, under a federal common law misappropriation theory, a challenge to a competitor's theft of "hot news." See id. at 240. Just twenty years later Erie R.R. v. Tompkins, 304 U.S. 62 (1938) (holding that there is no general federal common law), overruled the basis for INS. See INS, 248 U.S. at 78. The viability of the INS "hot news" protection under state law is hotly debated, see, e.g., National Basketball Assoc. v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997), and is outside the scope of this Article. A footnote in Feist makes reference to the INS opinion, noting that the plaintiff had prevailed on "noncopyright grounds that are not relevant here." Feist Publications, Inc. v. Rural Tel. Co., 499 U.S. 340, 354 n.* (1991). It would be a very far stretch to conclude from this brief, historical observation that the Court was implying that misappropriation protection survives. It would be an even further stretch to argue that a quote in Feist from a treatise writer on the issue of sweat of the brow copyright protection suggests that the Court believes misappropriation causes of action might still exist. The quote reads: "'Protection for the fruits of [the sweat of the brow] . . . may in certain circumstances be available . . . .'" Feist, 499 U.S. at 354 (quoting NIMMER & NIMMER, supra note 42, § 3.04, at 3-23). Whatever the Court may decide in a case brought before it on this issue, it surely will not feel constrained by having quoted from a treatise writer in a different case on a different issue. On the contrary, the best guide to the Court's thinking is its decision the prior year in Bonito Boats, in which Justice O'Connor, for a unanimous Court, wrote that the focus of unfair competition is "on the protection of consumers, not on the protection of producers as an incentive to product innovation." Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 157 (1989) (emphasis added). The "protection of producers as an incentive to product innovation" is precisely the prohibited focus of H.R. 2652. But even reading the precedent in the light most favorable to the proponents of H.R. 2652 - that an INS-type misappropriation cause of action still exists - the conduct H.R. 2652 reaches is light years away from the INS facts. Far from being concerned with "hot news," and a right limited in hours, H.R. 2652 protects ordinary facts and information, and in perpetuity. INS offers no support for H.R. 2652.
194. See Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834); see also PATRY, supra note 21, at 34- 36 (discussing Wheaton). In International News Service v. Associated Press, 248 U.S. 215 (1918), the Court upheld, under a federal common law misappropriation theory, a challenge to a competitor's theft of "hot news." See id. at 240. Just twenty years later Erie R.R. v. Tompkins, 304 U.S. 62 (1938) (holding that there is no general federal common law), overruled the basis for INS. See INS, 248 U.S. at 78. The viability of the INS "hot news" protection under state law is hotly debated, see, e.g., National Basketball Assoc. v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997), and is outside the scope of this Article. A footnote in Feist makes reference to the INS opinion, noting that the plaintiff had prevailed on "noncopyright grounds that are not relevant here." Feist Publications, Inc. v. Rural Tel. Co., 499 U.S. 340, 354 n.* (1991). It would be a very far stretch to conclude from this brief, historical observation that the Court was implying that misappropriation protection survives. It would be an even further stretch to argue that a quote in Feist from a treatise writer on the issue of sweat of the brow copyright protection suggests that the Court believes misappropriation causes of action might still exist. The quote reads: "'Protection for the fruits of [the sweat of the brow] . . . may in certain circumstances be available . . . .'" Feist, 499 U.S. at 354 (quoting NIMMER & NIMMER, supra note 42, § 3.04, at 3-23). Whatever the Court may decide in a case brought before it on this issue, it surely will not feel constrained by having quoted from a treatise writer in a different case on a different issue. On the contrary, the best guide to the Court's thinking is its decision the prior year in Bonito Boats, in which Justice O'Connor, for a unanimous Court, wrote that the focus of unfair competition is "on the protection of consumers, not on the protection of producers as an incentive to product innovation." Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 157 (1989) (emphasis added). The "protection of producers as an incentive to product innovation" is precisely the prohibited focus of H.R. 2652. But even reading the precedent in the light most favorable to the proponents of H.R. 2652 - that an INS-type misappropriation cause of action still exists - the conduct H.R. 2652 reaches is light years away from the INS facts. Far from being concerned with "hot news," and a right limited in hours, H.R. 2652 protects ordinary facts and information, and in perpetuity. INS offers no support for H.R. 2652.
195. See Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834); see also PATRY, supra note 21, at 34- 36 (discussing Wheaton). In International News Service v. Associated Press, 248 U.S. 215 (1918), the Court upheld, under a federal common law misappropriation theory, a challenge to a competitor's theft of "hot news." See id. at 240. Just twenty years later Erie R.R. v. Tompkins, 304 U.S. 62 (1938) (holding that there is no general federal common law), overruled the basis for INS. See INS, 248 U.S. at 78. The viability of the INS "hot news" protection under state law is hotly debated, see, e.g., National Basketball Assoc. v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997), and is outside the scope of this Article. A footnote in Feist makes reference to the INS opinion, noting that the plaintiff had prevailed on "noncopyright grounds that are not relevant here." Feist Publications, Inc. v. Rural Tel. Co., 499 U.S. 340, 354 n.* (1991). It would be a very far stretch to conclude from this brief, historical observation that the Court was implying that misappropriation protection survives. It would be an even further stretch to argue that a quote in Feist from a treatise writer on the issue of sweat of the brow copyright protection suggests that the Court believes misappropriation causes of action might still exist. The quote reads: "'Protection for the fruits of [the sweat of the brow] . . . may in certain circumstances be available . . . .'" Feist, 499 U.S. at 354 (quoting NIMMER & NIMMER, supra note 42, § 3.04, at 3-23). Whatever the Court may decide in a case brought before it on this issue, it surely will not feel constrained by having quoted from a treatise writer in a different case on a different issue. On the contrary, the best guide to the Court's thinking is its decision the prior year in Bonito Boats, in which Justice O'Connor, for a unanimous Court, wrote that the focus of unfair competition is "on the protection of consumers, not on the protection of producers as an incentive to product innovation." Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 157 (1989) (emphasis added). The "protection of producers as an incentive to product innovation" is precisely the prohibited focus of H.R. 2652. But even reading the precedent in the light most favorable to the proponents of H.R. 2652 - that an INS-type misappropriation cause of action still exists - the conduct H.R. 2652 reaches is light years away from the INS facts. Far from being concerned with "hot news," and a right limited in hours, H.R. 2652 protects ordinary facts and information, and in perpetuity. INS offers no support for H.R. 2652.
196. See Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834); see also PATRY, supra note 21, at 34- 36 (discussing Wheaton). In International News Service v. Associated Press, 248 U.S. 215 (1918), the Court upheld, under a federal common law misappropriation theory, a challenge to a competitor's theft of "hot news." See id. at 240. Just twenty years later Erie R.R. v. Tompkins, 304 U.S. 62 (1938) (holding that there is no general federal common law), overruled the basis for INS. See INS, 248 U.S. at 78. The viability of the INS "hot news" protection under state law is hotly debated, see, e.g., National Basketball Assoc. v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997), and is outside the scope of this Article. A footnote in Feist makes reference to the INS opinion, noting that the plaintiff had prevailed on "noncopyright grounds that are not relevant here." Feist Publications, Inc. v. Rural Tel. Co., 499 U.S. 340, 354 n.* (1991). It would be a very far stretch to conclude from this brief, historical observation that the Court was implying that misappropriation protection survives. It would be an even further stretch to argue that a quote in Feist from a treatise writer on the issue of sweat of the brow copyright protection suggests that the Court believes misappropriation causes of action might still exist. The quote reads: "'Protection for the fruits of [the sweat of the brow] . . . may in certain circumstances be available . . . .'" Feist, 499 U.S. at 354 (quoting NIMMER & NIMMER, supra note 42, § 3.04, at 3-23). Whatever the Court may decide in a case brought before it on this issue, it surely will not feel constrained by having quoted from a treatise writer in a different case on a different issue. On the contrary, the best guide to the Court's thinking is its decision the prior year in Bonito Boats, in which Justice O'Connor, for a unanimous Court, wrote that the focus of unfair competition is "on the protection of consumers, not on the protection of producers as an incentive to product innovation." Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 157 (1989) (emphasis added). The "protection of producers as an incentive to product innovation" is precisely the prohibited focus of H.R. 2652. But even reading the precedent in the light most favorable to the proponents of H.R. 2652 - that an INS-type misappropriation cause of action still exists - the conduct H.R. 2652 reaches is light years away from the INS facts. Far from being concerned with "hot news," and a right limited in hours, H.R. 2652 protects ordinary facts and information, and in perpetuity. INS offers no support for H.R. 2652.
197. See Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834); see also PATRY, supra note 21, at 34- 36 (discussing Wheaton). In International News Service v. Associated Press, 248 U.S. 215 (1918), the Court upheld, under a federal common law misappropriation theory, a challenge to a competitor's theft of "hot news." See id. at 240. Just twenty years later Erie R.R. v. Tompkins, 304 U.S. 62 (1938) (holding that there is no general federal common law), overruled the basis for INS. See INS, 248 U.S. at 78. The viability of the INS "hot news" protection under state law is hotly debated, see, e.g., National Basketball Assoc. v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997), and is outside the scope of this Article. A footnote in Feist makes reference to the INS opinion, noting that the plaintiff had prevailed on "noncopyright grounds that are not relevant here." Feist Publications, Inc. v. Rural Tel. Co., 499 U.S. 340, 354 n.* (1991). It would be a very far stretch to conclude from this brief, historical observation that the Court was implying that misappropriation protection survives. It would be an even further stretch to argue that a quote in Feist from a treatise writer on the issue of sweat of the brow copyright protection suggests that the Court believes misappropriation causes of action might still exist. The quote reads: "'Protection for the fruits of [the sweat of the brow] . . . may in certain circumstances be available . . . .'" Feist, 499 U.S. at 354 (quoting NIMMER & NIMMER, supra note 42, § 3.04, at 3-23). Whatever the Court may decide in a case brought before it on this issue, it surely will not feel constrained by having quoted from a treatise writer in a different case on a different issue. On the contrary, the best guide to the Court's thinking is its decision the prior year in Bonito Boats, in which Justice O'Connor, for a unanimous Court, wrote that the focus of unfair competition is "on the protection of consumers, not on the protection of producers as an incentive to product innovation." Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 157 (1989) (emphasis added). The "protection of producers as an incentive to product innovation" is precisely the prohibited focus of H.R. 2652. But even reading the precedent in the light most favorable to the proponents of H.R. 2652 - that an INS-type misappropriation cause of action still exists - the conduct H.R. 2652 reaches is light years away from the INS facts. Far from being concerned with "hot news," and a right limited in hours, H.R. 2652 protects ordinary facts and information, and in perpetuity. INS offers no support for H.R. 2652.
198. The connection between a purported need for a greater market share and a constitutional justification for legislation granting such rights is unclear at best. The Office of Legal Counsel, in its memorandum to the White House on H.R. 2652, took the unsupported view that "courts would be more likely to uphold legislation against constitutional challenge if they were persuaded that it would increase, rather than decrease, the collection and use of information." OLC Memo, supra note 22, at 2 n.1. Just how one might present the courts with such general evidence is unclear, as is the relevance of such evidence in the context of specific litigation.
199. Stewart E. Sterk, Rhetoric and Reality in Copyright Law, 94 MICH. L. REV. 1197, 1204 (1996) (citations omitted); see also William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. LEGAL STUD. 325, 327-29 (1989); Ian Novos & Michael Waldman, The Effects of Increased Copyright Protection, 92 J. POL. ECON. 236, 237 (1984); Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 COLUM. L. REV. 1600, 1602-11 (1982). But see Breyer, supra note 29, in which then-Professor (now Justice) Breyer argued that without copyright "competition should produce no more than a modest fall in revenue and even that decline would normally be limited to the sale of high volume works." Id. at 309; see also id. at 294-308 (providing data to support argument).
200. Stewart E. Sterk, Rhetoric and Reality in Copyright Law, 94 MICH. L. REV. 1197, 1204 (1996) (citations omitted); see also William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. LEGAL STUD. 325, 327-29 (1989); Ian Novos & Michael Waldman, The Effects of Increased Copyright Protection, 92 J. POL. ECON. 236, 237 (1984); Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 COLUM. L. REV. 1600, 1602-11 (1982). But see Breyer, supra note 29, in which then-Professor (now Justice) Breyer argued that without copyright "competition should produce no more than a modest fall in revenue and even that decline would normally be limited to the sale of high volume works." Id. at 309; see also id. at 294-308 (providing data to support argument).
201. Stewart E. Sterk, Rhetoric and Reality in Copyright Law, 94 MICH. L. REV. 1197, 1204 (1996) (citations omitted); see also William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. LEGAL STUD. 325, 327-29 (1989); Ian Novos & Michael Waldman, The Effects of Increased Copyright Protection, 92 J. POL. ECON. 236, 237 (1984); Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 COLUM. L. REV. 1600, 1602-11 (1982). But see Breyer, supra note 29, in which then-Professor (now Justice) Breyer argued that without copyright "competition should produce no more than a modest fall in revenue and even that decline would normally be limited to the sale of high volume works." Id. at 309; see also id. at 294-308 (providing data to support argument).
202. Stewart E. Sterk, Rhetoric and Reality in Copyright Law, 94 MICH. L. REV. 1197, 1204 (1996) (citations omitted); see also William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. LEGAL STUD. 325, 327-29 (1989); Ian Novos & Michael Waldman, The Effects of Increased Copyright Protection, 92 J. POL. ECON. 236, 237 (1984); Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 COLUM. L. REV. 1600, 1602-11 (1982). But see Breyer, supra note 29, in which then-Professor (now Justice) Breyer argued that without copyright "competition should produce no more than a modest fall in revenue and even that decline would normally be limited to the sale of high volume works." Id. at 309; see also id. at 294-308 (providing data to support argument).
203. Stewart E. Sterk, Rhetoric and Reality in Copyright Law, 94 MICH. L. REV. 1197, 1204 (1996) (citations omitted); see also William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. LEGAL STUD. 325, 327-29 (1989); Ian Novos & Michael Waldman, The Effects of Increased Copyright Protection, 92 J. POL. ECON. 236, 237 (1984); Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 COLUM. L. REV. 1600, 1602-11 (1982). But see Breyer, supra note 29, in which then-Professor (now Justice) Breyer argued that without copyright "competition should produce no more than a modest fall in revenue and even that decline would normally be limited to the sale of high volume works." Id. at 309; see also id. at 294-308 (providing data to support argument).
204. In a remark that reveals ignorance of the contents of the very bill it purports to explain, the House Judiciary Committee report on H.R. 2652 asserts that "a balanced statutory solution may provide consumers with greater access to information than the restrictive contractual terms and technological protection measures likely to be adopted in the absence of adequate legal protections." H.R. REP. No. 105-525, at 8-9 (1998). The legislation, however, expressly ensures that such restrictive contractual provisions will remain enforceable. See H.R. 2652, 105th Cong. § 1205(b) (1997). Moreover, the "Christmas tree" bill (the "Digital Millennium Copyright Act," H.R. 2281, 105th Cong. (1998)), to which H.R. 2652 was subsequently attached, provides for civil and criminal penalties for those who circumvent technological protection measures. See 17 U.S.C. §§ 1203, 1204 (1998) (Pub. L. No. 105-304, 112 Stat. 2860); see also supra note 15.
205. See Landes & Posner, supra note 141, at 342-43.
206. Sterk, supra note 141, at 1207 (citation omitted).
207. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348-49 (1991).
208. See, e.g., JAMES BOYLE, SHAMANS, SOFTWARE, AND SPLEENS: LAW AND THE CONSTRUCTION OF THE INFORMATION SOCIETY 35-45 (1996); Wendy J. Gordon, Asymmetric Market Failure and the Prisoner's Dilemma in Intellectual Property, 17 U. DAYTON L. REV. 853, 866-68 (1992); see also, J.H. Reichman & Pamela Samuelson, Intellectual Property Rights in Data?, 50 VAND. L. REV. 51, 113-36 (1997) (questioning necessity for sui generis protection).
209. See, e.g., JAMES BOYLE, SHAMANS, SOFTWARE, AND SPLEENS: LAW AND THE CONSTRUCTION OF THE INFORMATION SOCIETY 35-45 (1996); Wendy J. Gordon, Asymmetric Market Failure and the Prisoner's Dilemma in Intellectual Property, 17 U. DAYTON L. REV. 853, 866-68 (1992); see also, J.H. Reichman & Pamela Samuelson, Intellectual Property Rights in Data?, 50 VAND. L. REV. 51, 113-36 (1997) (questioning necessity for sui generis protection).
210. See, e.g., JAMES BOYLE, SHAMANS, SOFTWARE, AND SPLEENS: LAW AND THE CONSTRUCTION OF THE INFORMATION SOCIETY 35-45 (1996); Wendy J. Gordon, Asymmetric Market Failure and the Prisoner's Dilemma in Intellectual Property, 17 U. DAYTON L. REV. 853, 866-68 (1992); see also, J.H. Reichman & Pamela Samuelson, Intellectual Property Rights in Data?, 50 VAND. L. REV. 51, 113-36 (1997) (questioning necessity for sui generis protection).
211. See, e.g., The Collections of Information Antipiracy Act of 1997: Hearings on H.R. 2652 Before the Subcomm. on Courts and Intellectual Property (U.S. House of Representatives, Oct. 23, 1997) (written statement of Coalition Against Database Piracy), available in 〈http://www. house.gov/judiciary/141117.htm〉.
212. See, e.g., The Collections of Information Antipiracy Act of 1997: Hearings on H.R. 2652 Before the Subcomm. on Courts and Intellectual Property (U.S. House of Representatives, Oct. 23, 1997) (statement of Laura D'Andrea Tyson & Edward F. Sherry), available in 〈http://www. house.gov/judiciary/141118.htm〉.
213. See William Patry, Copyright in Compilations of Facts (or Why the "White Pages" Are Not Copyrightable), 12 COMM. & L. 37, 38-39 & nn.4-6 (1990).
214. See Worth v. Selchow & Righter Co., 827 F.2d 569, 574 (9th Cir. 1987), cert. denied, 485 U.S. 977 (1988); Financial Info., Inc. v. Moody's Investors Serv., Inc., 751 F.2d 501, 510 (2d Cir. 1984) (Newman, J., concurring).
215. Because injunctions in copyright cases are nationwide, savvy sweat of the brow data base producers could have brought suit in a sweat of the brow circuit. Of course, equally savvy users could have won the race to the courthouse by bringing a declaratory judgment action in an anti-sweat of the brow circuit.
216. REPORT OF THE U.S. COPYRIGHT OFFICE ON THE LEGAL PROTECTION OF DATABASES 40 (Aug. 1997), available in 〈http://lcweb.loc.gov/copyright/cpypub/db4.wp〉. Advocates of sui generis database protection have also cited to a few post-Feist decisions either granting a limited scope of or no protection as a ground for such protection. See Bellsouth Adver. Corp. v. Donnelley Info. Pub., 999 F.2d 1436 (11th Cir. 1993) (en bane), cert. denied, 114 S. Ct. 943 (1994); Skinder Strauss Assoc. v. Massachusetts Continuing Legal Educ., Inc., 914 F. Supp. 665 (D. Mass. 1995); see also ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996). Only one decision in this line, Warren Publ'g, Inc. v. Microdos Data Corp., 115 F.3d 1509 (11th Cir. 1997) (en banc), is, in my opinion, incorrectly decided. Even if there is more than one faulty opinion, however, this should hardly serve as an adequate reason for enactment of an entirely new, extremely broad property right.
217. REPORT OF THE U.S. COPYRIGHT OFFICE ON THE LEGAL PROTECTION OF DATABASES 40 (Aug. 1997), available in 〈http://lcweb.loc.gov/copyright/cpypub/db4.wp〉. Advocates of sui generis database protection have also cited to a few post-Feist decisions either granting a limited scope of or no protection as a ground for such protection. See Bellsouth Adver. Corp. v. Donnelley Info. Pub., 999 F.2d 1436 (11th Cir. 1993) (en bane), cert. denied, 114 S. Ct. 943 (1994); Skinder Strauss Assoc. v. Massachusetts Continuing Legal Educ., Inc., 914 F. Supp. 665 (D. Mass. 1995); see also ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996). Only one decision in this line, Warren Publ'g, Inc. v. Microdos Data Corp., 115 F.3d 1509 (11th Cir. 1997) (en banc), is, in my opinion, incorrectly decided. Even if there is more than one faulty opinion, however, this should hardly serve as an adequate reason for enactment of an entirely new, extremely broad property right.
218. REPORT OF THE U.S. COPYRIGHT OFFICE ON THE LEGAL PROTECTION OF DATABASES 40 (Aug. 1997), available in 〈http://lcweb.loc.gov/copyright/cpypub/db4.wp〉. Advocates of sui generis database protection have also cited to a few post-Feist decisions either granting a limited scope of or no protection as a ground for such protection. See Bellsouth Adver. Corp. v. Donnelley Info. Pub., 999 F.2d 1436 (11th Cir. 1993) (en bane), cert. denied, 114 S. Ct. 943 (1994); Skinder Strauss Assoc. v. Massachusetts Continuing Legal Educ., Inc., 914 F. Supp. 665 (D. Mass. 1995); see also ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996). Only one decision in this line, Warren Publ'g, Inc. v. Microdos Data Corp., 115 F.3d 1509 (11th Cir. 1997) (en banc), is, in my opinion, incorrectly decided. Even if there is more than one faulty opinion, however, this should hardly serve as an adequate reason for enactment of an entirely new, extremely broad property right.
219. REPORT OF THE U.S. COPYRIGHT OFFICE ON THE LEGAL PROTECTION OF DATABASES 40 (Aug. 1997), available in 〈http://lcweb.loc.gov/copyright/cpypub/db4.wp〉. Advocates of sui generis database protection have also cited to a few post-Feist decisions either granting a limited scope of or no protection as a ground for such protection. See Bellsouth Adver. Corp. v. Donnelley Info. Pub., 999 F.2d 1436 (11th Cir. 1993) (en bane), cert. denied, 114 S. Ct. 943 (1994); Skinder Strauss Assoc. v. Massachusetts Continuing Legal Educ., Inc., 914 F. Supp. 665 (D. Mass. 1995); see also ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996). Only one decision in this line, Warren Publ'g, Inc. v. Microdos Data Corp., 115 F.3d 1509 (11th Cir. 1997) (en banc), is, in my opinion, incorrectly decided. Even if there is more than one faulty opinion, however, this should hardly serve as an adequate reason for enactment of an entirely new, extremely broad property right.
220. REPORT OF THE U.S. COPYRIGHT OFFICE ON THE LEGAL PROTECTION OF DATABASES 40 (Aug. 1997), available in 〈http://lcweb.loc.gov/copyright/cpypub/db4.wp〉. Advocates of sui generis database protection have also cited to a few post-Feist decisions either granting a limited scope of or no protection as a ground for such protection. See Bellsouth Adver. Corp. v. Donnelley Info. Pub., 999 F.2d 1436 (11th Cir. 1993) (en bane), cert. denied, 114 S. Ct. 943 (1994); Skinder Strauss Assoc. v. Massachusetts Continuing Legal Educ., Inc., 914 F. Supp. 665 (D. Mass. 1995); see also ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996). Only one decision in this line, Warren Publ'g, Inc. v. Microdos Data Corp., 115 F.3d 1509 (11th Cir. 1997) (en banc), is, in my opinion, incorrectly decided. Even if there is more than one faulty opinion, however, this should hardly serve as an adequate reason for enactment of an entirely new, extremely broad property right.
221. See Martha Williams, The State of Databases Today: 1998, xvii, xix, reprinted in GALE DIRECTORY OF DATABASES (Erin E. Braun ed., 1998).
222. See id. at xx.
223. Id. at xxvii.
224. One may, of course, argue that greater protection would lead to greater production, but this is speculation, and speculation that might turn out to be false if there is a concentration of databases in fewer producers and a high level of protection.
225. See The Collections of Information Antipiracy Act of 1997: Hearings on H.R. 2652 Before the Subcomm. on Courts and Intellectual Property (U.S. House of Representatives, Oct. 23, 1997) (statement of Laura D'Andrea Tyson & Edward F. Sherry), available in 〈http://www. house.gov/judiciary/141118.htm〉.
226. Mazer v. Stein, 347 U.S. 201, 219 (1954).
227. See KOHELET (Ecclesiastes) Chapter 1, verse 9. Indeed, even tracking down the origins of the phrase "a dwarf standing on the shoulders of a giant sees further than the giant" has spawned its own book. See ROBERT K. MERTON, ON THE SHOULDERS OF GIANTS: A SHANDEAN POSTSCRIPT 2-4 (1965).
228. Breyer, supra note 29, at 285-86 (citations omitted).
229. JOHN LOCKE, Second Treatise of Government § 27, in Two TREATISES OF GOVERNMENT (Peter Laslett ed., 1963) (3d ed. 1698).
230. Hamilton, supra note 87, at 18-19 (citation omitted).
231. See supra text accompanying note 108.
232. See ROBERT NOZICK, ANARCHY, STATE AND UTOPIA 175 (1974).
233. Wendy J. Gordon, On Owning Information: Intellectual Property and the Restitutionary Impulse, 78 VA. L. REV. 149, 167 (1992).
234. See id. at 156.
235. But see id. at 157; see also MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS (1965). The free-rider hypothesis was vigorously attacked as an explanation for collective economic action in Earl R. Brubaker, Free Ride, Free Revelation, or Golden Rule?, 18 J.L. & ECON. 147 (1975).
236. But see id. at 157; see also MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS (1965). The free-rider hypothesis was vigorously attacked as an explanation for collective economic action in Earl R. Brubaker, Free Ride, Free Revelation, or Golden Rule?, 18 J.L. & ECON. 147 (1975).
237. See Gordon, supra note 165, at 167.
238. Id. at 196 (citation omitted).
239. Dean Douglas Baird has written: That an individual has the right to reap what he has sown . . . is far from self-evident even as applied to tangible property. . . . We typically can reap only the wheat we sow on our land, and how land becomes private property in the first place remains a mystery. In any event, wheat and information are fundamentally different from one another. It is the nature of wheat or land or any other tangible property that possession by one person precludes possession by anyone else. . . . Many people, however, can use the same piece of information. Douglas G. Baird, Common Law Intellectual Property and the Legacy of International News Service v. Associated Press, 50 U. CHI. L. REV. 411, 413 (1983).
240. Questions about competitive behavior being "fair" or "unfair" are ancient. In the era of the Mishna and Gemara (30-500 C.E.), scholars debated topics such as whether a storekeeper could distribute free toasted grain or nuts to children in order to attract customers (yes), or set prices below the market rate (yes), see BABYLONIAN TALMUD, BAVA METZIA 60a; whether a resident of one town can be barred from setting up a business in a different town in competition with an existing business (yes); whether a resident of one town who pays taxes to a different town in which he wishes to set up a business in competition with a resident of that town may do so (yes, except not in the immediate area where the first business is located); whether a resident of one area (mavoi) who has an established milling business can prevent a second resident of the same area from setting up a competing mill on the ground "Ka Paskat Lay L'Chiyuti" (You are cutting off my livelihood) (question unresolved); and, whether one teacher of Torah can prevent another such teacher from teaching in the same area (no). See BABYLONIAN TALMUD, BAVA BASRA 21b. (This last fact setting was apparently the subject of a dispute over one thousand years later in England in a case in which one schoolmaster unsuccessfully sought to prevent a newcomer from soliciting students. See Keeble v. Hickeringill, 103 Eng. Rep. 1127 (K.B. 1809) (discussing 11 H. 4, 47 (1410)). The concept of unfair competition in Jewish law, hasagut gevul, is derived from Sefer Devarim's (Deuteronomy) injunction (27:17), "Lo Tasig Gavul Rayacha Asher Gavul Rishonim Banachlatcha" (Do not move a boundary of your neighbors, which the ancients set). Id. This real property concept was subsequently expanded to encompass unfair competition, and, eventually formed the basis for copyright protection. See, e.g., Menachem Elon, The Principles of Jewish Law 340-46 (1974). See generally J. DAVID BLEICH, 2 CONTEMPORARY HALAKHIC PROBLEMS 121-30 (1983).
241. Questions about competitive behavior being "fair" or "unfair" are ancient. In the era of the Mishna and Gemara (30-500 C.E.), scholars debated topics such as whether a storekeeper could distribute free toasted grain or nuts to children in order to attract customers (yes), or set prices below the market rate (yes), see BABYLONIAN TALMUD, BAVA METZIA 60a; whether a resident of one town can be barred from setting up a business in a different town in competition with an existing business (yes); whether a resident of one town who pays taxes to a different town in which he wishes to set up a business in competition with a resident of that town may do so (yes, except not in the immediate area where the first business is located); whether a resident of one area (mavoi) who has an established milling business can prevent a second resident of the same area from setting up a competing mill on the ground "Ka Paskat Lay L'Chiyuti" (You are cutting off my livelihood) (question unresolved); and, whether one teacher of Torah can prevent another such teacher from teaching in the same area (no). See BABYLONIAN TALMUD, BAVA BASRA 21b. (This last fact setting was apparently the subject of a dispute over one thousand years later in England in a case in which one schoolmaster unsuccessfully sought to prevent a newcomer from soliciting students. See Keeble v. Hickeringill, 103 Eng. Rep. 1127 (K.B. 1809) (discussing 11 H. 4, 47 (1410)). The concept of unfair competition in Jewish law, hasagut gevul, is derived from Sefer Devarim's (Deuteronomy) injunction (27:17), "Lo Tasig Gavul Rayacha Asher Gavul Rishonim Banachlatcha" (Do not move a boundary of your neighbors, which the ancients set). Id. This real property concept was subsequently expanded to encompass unfair competition, and, eventually formed the basis for copyright protection. See, e.g., Menachem Elon, The Principles of Jewish Law 340-46 (1974). See generally J. DAVID BLEICH, 2 CONTEMPORARY HALAKHIC PROBLEMS 121-30 (1983).
242. Questions about competitive behavior being "fair" or "unfair" are ancient. In the era of the Mishna and Gemara (30-500 C.E.), scholars debated topics such as whether a storekeeper could distribute free toasted grain or nuts to children in order to attract customers (yes), or set prices below the market rate (yes), see BABYLONIAN TALMUD, BAVA METZIA 60a; whether a resident of one town can be barred from setting up a business in a different town in competition with an existing business (yes); whether a resident of one town who pays taxes to a different town in which he wishes to set up a business in competition with a resident of that town may do so (yes, except not in the immediate area where the first business is located); whether a resident of one area (mavoi) who has an established milling business can prevent a second resident of the same area from setting up a competing mill on the ground "Ka Paskat Lay L'Chiyuti" (You are cutting off my livelihood) (question unresolved); and, whether one teacher of Torah can prevent another such teacher from teaching in the same area (no). See BABYLONIAN TALMUD, BAVA BASRA 21b. (This last fact setting was apparently the subject of a dispute over one thousand years later in England in a case in which one schoolmaster unsuccessfully sought to prevent a newcomer from soliciting students. See Keeble v. Hickeringill, 103 Eng. Rep. 1127 (K.B. 1809) (discussing 11 H. 4, 47 (1410)). The concept of unfair competition in Jewish law, hasagut gevul, is derived from Sefer Devarim's (Deuteronomy) injunction (27:17), "Lo Tasig Gavul Rayacha Asher Gavul Rishonim Banachlatcha" (Do not move a boundary of your neighbors, which the ancients set). Id. This real property concept was subsequently expanded to encompass unfair competition, and, eventually formed the basis for copyright protection. See, e.g., Menachem Elon, The Principles of Jewish Law 340-46 (1974). See generally J. DAVID BLEICH, 2 CONTEMPORARY HALAKHIC PROBLEMS 121-30 (1983).
243. Questions about competitive behavior being "fair" or "unfair" are ancient. In the era of the Mishna and Gemara (30-500 C.E.), scholars debated topics such as whether a storekeeper could distribute free toasted grain or nuts to children in order to attract customers (yes), or set prices below the market rate (yes), see BABYLONIAN TALMUD, BAVA METZIA 60a; whether a resident of one town can be barred from setting up a business in a different town in competition with an existing business (yes); whether a resident of one town who pays taxes to a different town in which he wishes to set up a business in competition with a resident of that town may do so (yes, except not in the immediate area where the first business is located); whether a resident of one area (mavoi) who has an established milling business can prevent a second resident of the same area from setting up a competing mill on the ground "Ka Paskat Lay L'Chiyuti" (You are cutting off my livelihood) (question unresolved); and, whether one teacher of Torah can prevent another such teacher from teaching in the same area (no). See BABYLONIAN TALMUD, BAVA BASRA 21b. (This last fact setting was apparently the subject of a dispute over one thousand years later in England in a case in which one schoolmaster unsuccessfully sought to prevent a newcomer from soliciting students. See Keeble v. Hickeringill, 103 Eng. Rep. 1127 (K.B. 1809) (discussing 11 H. 4, 47 (1410)). The concept of unfair competition in Jewish law, hasagut gevul, is derived from Sefer Devarim's (Deuteronomy) injunction (27:17), "Lo Tasig Gavul Rayacha Asher Gavul Rishonim Banachlatcha" (Do not move a boundary of your neighbors, which the ancients set). Id. This real property concept was subsequently expanded to encompass unfair competition, and, eventually formed the basis for copyright protection. See, e.g., Menachem Elon, The Principles of Jewish Law 340-46 (1974). See generally J. DAVID BLEICH, 2 CONTEMPORARY HALAKHIC PROBLEMS 121-30 (1983).
244. Questions about competitive behavior being "fair" or "unfair" are ancient. In the era of the Mishna and Gemara (30-500 C.E.), scholars debated topics such as whether a storekeeper could distribute free toasted grain or nuts to children in order to attract customers (yes), or set prices below the market rate (yes), see BABYLONIAN TALMUD, BAVA METZIA 60a; whether a resident of one town can be barred from setting up a business in a different town in competition with an existing business (yes); whether a resident of one town who pays taxes to a different town in which he wishes to set up a business in competition with a resident of that town may do so (yes, except not in the immediate area where the first business is located); whether a resident of one area (mavoi) who has an established milling business can prevent a second resident of the same area from setting up a competing mill on the ground "Ka Paskat Lay L'Chiyuti" (You are cutting off my livelihood) (question unresolved); and, whether one teacher of Torah can prevent another such teacher from teaching in the same area (no). See BABYLONIAN TALMUD, BAVA BASRA 21b. (This last fact setting was apparently the subject of a dispute over one thousand years later in England in a case in which one schoolmaster unsuccessfully sought to prevent a newcomer from soliciting students. See Keeble v. Hickeringill, 103 Eng. Rep. 1127 (K.B. 1809) (discussing 11 H. 4, 47 (1410)). The concept of unfair competition in Jewish law, hasagut gevul, is derived from Sefer Devarim's (Deuteronomy) injunction (27:17), "Lo Tasig Gavul Rayacha Asher Gavul Rishonim Banachlatcha" (Do not move a boundary of your neighbors, which the ancients set). Id. This real property concept was subsequently expanded to encompass unfair competition, and, eventually formed the basis for copyright protection. See, e.g., Menachem Elon, The Principles of Jewish Law 340-46 (1974). See generally J. DAVID BLEICH, 2 CONTEMPORARY HALAKHIC PROBLEMS 121-30 (1983).
245. Financial Info., Inc. v. Moody's Investors Serv., 808 F.2d 204, 208 (2d Cir. 1986).
246. See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 350 (1991).
247. OLC Memo, supra note 22, at 8.
248. Id. at 9.
249. 100 U.S. 82 (1879).
250. See id. at 93-94.
251. Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 414 (1916); see also DuPont Cellophane Co., Inc. v. Waxed Prods. Co., 85 F.2d 75 (2d Cir. 1936): The rights of the complainant must be based upon a wrong which the defendant has done to it by misleading customers as to the origin of the goods sold and thus taking away its trade. Such rights are not founded on a bare title to a word or symbol, but on a cause of action to prevent deception. Id. at 81.
252. This is not to deny that a product's trade dress may function as a source identifier for the product, and, as such be protectible. See, e.g., Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 776 (1992) (distinctive decor of Mexican restaurant franchise protectable under Lanham Act); Mastercrafters Clock & Radio Co. v. Vacheron & Constantin-Le Coultre Watches, Inc., 221 F.2d 464, 466 (2d Cir. 1955) (shape of "Atmos" clock had acquired secondary meaning).
253. Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 57 (1989); see also id. at 166 (equating section 43(a) of the Lanham Act with the law of unfair competition). The Court has also held that the essential elements of a trademark infringement claim are the same as those for unfair competition. See Hanover Star Milling, 240 U.S. at 412-14.
254. See Bonito Boats, 489 U.S. at 158.
255. See Mead Data Central, Inc. v. Toyota Motor Sales, U.S.A., Inc., 875 F.2d 1026, 039-40 (2d Cir. 1989) (dilution case holding that "LEXUS" mark used by car company did not infringe "LEXIS" mark used by computer service).
256. Bonito Boats, 489 U.S. at 157 (quoting Crescent Tool Co. v. Kilburn & Bishop Co., 247 F. 299, 301 (2d Cir. 1917) (Hand, J.)). The courts may also require the use of disclaimers as a remedy, instead of issuing injunctions, when consumer confusion may be substantially avoided thereby. See, e.g., Home Box Office, Inc. v. Showtime, 832 F.2d 1311 (2d Cir. 1987); Soltex Polymer Corp. v. Fortex Indus., 832 F.2d 1325 (2d Cir. 1987); Charles of the Ritz Group v. Quality King Distribs., 832 F.2d 1317 (2d Cir. 1987); Vincent N. Palladino, Disclaimers Before and After HBO v. Showtime, 82 TRADEMARK REP. 203 (1992).
257. See, e.g., W.W. Pharmaceutical Co. v. Gillette Co., 984 F.2d 567, 157 (2d Cir. 1993); Sands, Taylor & Wood Co. v. Quaker Oats Co., 978 F.2d 947, 957-58 (7th Cir. 1992); Banff, Ltd. v. Federated Dep't Stores, 841 F.2d 486, 490-91 (2d Cir. 1988).
258. Pub. L. No. 104-98, § 4, 109 Stat. 986 (1995). Another example may be the Amateur Sports Act, 36 U.S.C. § 380 (1994), adjudicated in San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 539-41 (1987) (holding that the statute did not require likelihood of confusion). The Office of Legal Counsel has rejected this act (and the opinion) as supporting, sui generis, database protection. See OLC Memo, supra note 22, at 16.
259. Pub. L. No. 104-98, § 4, 109 Stat. 986 (1995). Another example may be the Amateur Sports Act, 36 U.S.C. § 380 (1994), adjudicated in San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 539-41 (1987) (holding that the statute did not require likelihood of confusion). The Office of Legal Counsel has rejected this act (and the opinion) as supporting, sui generis, database protection. See OLC Memo, supra note 22, at 16.
260. Frank I. Schechter, The Rational Basis of Trademark Protection, 40 HARV. L. REV. 813, 830 (1927).
261. 15 U.S.C. § 1127 (1994).
262. See The Trade-mark Cases, 100 U.S. 82, 97-89 (1879).
263. 3 J. MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 24:70, at 24-120 (4th ed. 1997).
264. 416 U.S. 470 (1974).
265. Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 154-57 (1989).
266. For further discussion of the extra elements test, see Computer Assoc., Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 716-17 (2d Cir. 1992).
267. See Bonito Boats, 489 U.S. at 155.
268. Kewanee, 416 U.S. at 487.
269. Bonito Boats, 489 U.S. at 155 (quoting Kewanee, 416 U.S. at 490).
270. See supra note 15.
271. See infra note 200 and accompanying text. That H.R. 2652 extends protection to compilations that do not meet the standard of originality does not mean they are not "compilations" within the meaning of the Copyright Act; it only means they are unoriginal compilations. 198 H.R. 2652, 105th Cong. § 1201(2) (1997).
272. Indeed, section 1201(2)'s reference to "works of authorship" explicitly brings copyrighted compilations into the legislation.
273. 17 U.S.C. § 101 (1994).
274. H.R. 2652 § 1201(1).
275. This requirement is found instead in the infringement section. See H.R. 2652 § 1301(1).
276. On May 23, 1996, Congressman Carlos Moorhead, then chair of the House subcommittee on Courts and Intellectual Property introduced H.R. 3531, the "Database Investment and Intellectual Property Antipiracy Act of 1996," H.R. 3531, 104th Cong. (1996).
277. See The "Collections of Information Antipioracy Act": Hearings on H.R. 2652 Before the Subcomm. on Courts and Intellectual Property (U.S. House of Representatives, Oct. 23, 1997) (statement of Marybeth Peters), available in 〈http://www.house.gov/judiciary/41112.htm〉
278. H.R. 2652 § 1202 indicates that Any person who extracts, or uses in commerce, all or a substantial part . . . of a collection of information gathered, organized, or maintained by another person through the investment of substantial monetary or other resources, so as to cause harm to the actual or potential market . . . for a product or service that incorporates that collection of information and is offered . . . in commerce . . . shall be liable to that person . . . for the remedies set forth in section 1206. Id.
279. See, e.g., H.R. REP. No. 105-525, at 9 (1998) (asserting that the Act would not "create a property right like copyright, but instead "a tort-based cause of action against misappropriation").
280. See, e.g., Rep. Howard Coble, The Spring 1998 Horace Manges Lecture - The 105th Congress: Recent Developments in Intellectual Property Law, 22 COLUM.-VLA J.L. & ARTS 269, 343 (1998) ("This bill rejects the notion that a sui generis property right is needed, but rather offers comparable protection through the implementation of a new federal misappropriation statute.").
281. H.R. 2652 § 1201(3), discussed in OLC Memo, supra note 22, at 6.
282. OLC Memo, supra note 22, at 6.
283. See id. at 13 n.10.
284. See id. at 1 ("The object of H.R. 2652 is, in effect, to provide a quasi-property right in certain collections of information.").
285. See 17 U.S.C. § 107(4). See generally PATRY, supra note 25.
286. See 17 U.S.C. § 107(4). See generally PATRY, supra note 25.
287. See PATRY, supra note 25, at 706-15.
288. H.R. 2652, 105th Cong. § 1202 (1997). The extraction or use must result in harm to the actual or potential market for the collection of information. See id.
289. It is unclear who will bear the burden of proving harm to the market under H.R. 2652 § 1201.
290. H.R. 2652 § 1202.
291. But see Gordon, supra note 135, at 1356-57 (distinguishing among "rights of exclusion, rights against harm or interference, and rights over the benefits their property yields"). Professor Hamilton, in a letter to House of Representatives chair Howard Coble, persuasively rebutted the bill's attempt to sidestep Feist's constitutional bar on protection for nonoriginal material: H.R. 2652 attempts to sidestep [the constitutional] problem through the label "misappropriation," as though Congress has created a tort rather than a property right. The label, however, does not gainsay the fact that the bill plainly attempts to create property rights in information by excluding others from using the database without permission and providing civil and criminal remedies against those who trespass on such data. In the context of Feist, the "misappropriation" label rings as a pretext. Hamilton Letter, supra note 32, at 3. Professor Jane Ginsburg, in an article published after Feist, agreed that the Copyright Clause acts as a limitation on the Commerce Clause. She nevertheless took the position, en passant, that Congress could enact a "Commerce Clause-derived statute barring misappropriation of compiled information . . . as long as the [statute] departs in significant ways from the copyright model." Jane C. Ginsburg, No "Sweat"? Copyright and Other Protection of Works of Information After Feist v. Rural Telephone, 92 COLUM. L. REV. 338, 371 (1992). "Appropriate and meaningful departures" include a shorter term of protection, compulsory licensing, as well as granting "more, rather than less, protection." Id. at 371-72. Compare this reasoning to the Supreme Court's discussion in Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974), in which the Court gave as one reason for the lack of preemption of state trade secret protection the fact that "[t]rade secret protection provides far weaker protection in many respects than the patent law." Id. at 489-90 (citation omitted). With all due respect to Professor Ginsburg, I believe none of these represent departures sufficient to avoid a conflict with the Copyright Clause; none of them change the nature of the right granted, they only tinker at the margins of the scope of the right granted. The term of copyright protection is 75 years for works created by corporations. See 17 U.S.C. § 302(c) (1994). How many fewer years make the nature rather than the scope of protection significantly different? Professor Ginsburg's argument concerning compulsory licensing deserves closer consideration, however. Although compulsory licensing is rife in the Copyright Act, see e.g., 17 U.S.C. §§ 111, 114, 115, 118, & 119, one must admit that if the essence of an exclusive right is the ability to say "no," a compulsory license "liability right" veers away from a copyright right. We do not need to definitively address the property versus liability issue in the present context, however, because even a compulsory license impermissibly conflicts with the public's constitutional right to copy unoriginal material without payment. For further discussion of this point, see Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865 (1990); and Peter A. Jaszi, Goodbye to All That - a Reluctant (and Perhaps Premature) Adieu to Constitutionally-Grounded Discourse of Public Interest in Copyright Law, 29 VAND. J. TRANSNAT'L L. 595 (1996). The Copyright Office, in what regrettably it passes off as analysis these days, has produced only an extremely brief discussion of the important constitutional issues. See REPORT OF THE U.S. COPYRIGHT OFFICE ON THE LEGAL PROTECTION OF DATABASES 107-115 (Aug. 1997) (arguing that "[p]rotecting the investment in databases may be seen as distinct from protecting original authorship through copyright," the report suggests Congress may not run afoul of the specific restrictions in the Copyright Clause), available in 〈http://lcweb.loc.gov/copyright/ cpypub/db4.wp〉. But Congress is not directly protecting investment in the proposed bill; it is granting a property right in an unoriginal database, and granting rights that are equivalent to those granted under the Copyright Act. Cf. REPORT OF THE PATENT AND TRADEMARK OFFICE ON RECOMMENDATIONS FROM APRIL 1998 CONFERENCE ON DATABASE PROTECTION AND ACCESS ISSUE (April 1998), for a more thorough, thoughtful, and balanced look at the issues.
292. But see Gordon, supra note 135, at 1356-57 (distinguishing among "rights of exclusion, rights against harm or interference, and rights over the benefits their property yields"). Professor Hamilton, in a letter to House of Representatives chair Howard Coble, persuasively rebutted the bill's attempt to sidestep Feist's constitutional bar on protection for nonoriginal material: H.R. 2652 attempts to sidestep [the constitutional] problem through the label "misappropriation," as though Congress has created a tort rather than a property right. The label, however, does not gainsay the fact that the bill plainly attempts to create property rights in information by excluding others from using the database without permission and providing civil and criminal remedies against those who trespass on such data. In the context of Feist, the "misappropriation" label rings as a pretext. Hamilton Letter, supra note 32, at 3. Professor Jane Ginsburg, in an article published after Feist, agreed that the Copyright Clause acts as a limitation on the Commerce Clause. She nevertheless took the position, en passant, that Congress could enact a "Commerce Clause-derived statute barring misappropriation of compiled information . . . as long as the [statute] departs in significant ways from the copyright model." Jane C. Ginsburg, No "Sweat"? Copyright and Other Protection of Works of Information After Feist v. Rural Telephone, 92 COLUM. L. REV. 338, 371 (1992). "Appropriate and meaningful departures" include a shorter term of protection, compulsory licensing, as well as granting "more, rather than less, protection." Id. at 371-72. Compare this reasoning to the Supreme Court's discussion in Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974), in which the Court gave as one reason for the lack of preemption of state trade secret protection the fact that "[t]rade secret protection provides far weaker protection in many respects than the patent law." Id. at 489-90 (citation omitted). With all due respect to Professor Ginsburg, I believe none of these represent departures sufficient to avoid a conflict with the Copyright Clause; none of them change the nature of the right granted, they only tinker at the margins of the scope of the right granted. The term of copyright protection is 75 years for works created by corporations. See 17 U.S.C. § 302(c) (1994). How many fewer years make the nature rather than the scope of protection significantly different? Professor Ginsburg's argument concerning compulsory licensing deserves closer consideration, however. Although compulsory licensing is rife in the Copyright Act, see e.g., 17 U.S.C. §§ 111, 114, 115, 118, & 119, one must admit that if the essence of an exclusive right is the ability to say "no," a compulsory license "liability right" veers away from a copyright right. We do not need to definitively address the property versus liability issue in the present context, however, because even a compulsory license impermissibly conflicts with the public's constitutional right to copy unoriginal material without payment. For further discussion of this point, see Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865 (1990); and Peter A. Jaszi, Goodbye to All That - a Reluctant (and Perhaps Premature) Adieu to Constitutionally-Grounded Discourse of Public Interest in Copyright Law, 29 VAND. J. TRANSNAT'L L. 595 (1996). The Copyright Office, in what regrettably it passes off as analysis these days, has produced only an extremely brief discussion of the important constitutional issues. See REPORT OF THE U.S. COPYRIGHT OFFICE ON THE LEGAL PROTECTION OF DATABASES 107-115 (Aug. 1997) (arguing that "[p]rotecting the investment in databases may be seen as distinct from protecting original authorship through copyright," the report suggests Congress may not run afoul of the specific restrictions in the Copyright Clause), available in 〈http://lcweb.loc.gov/copyright/ cpypub/db4.wp〉. But Congress is not directly protecting investment in the proposed bill; it is granting a property right in an unoriginal database, and granting rights that are equivalent to those granted under the Copyright Act. Cf. REPORT OF THE PATENT AND TRADEMARK OFFICE ON RECOMMENDATIONS FROM APRIL 1998 CONFERENCE ON DATABASE PROTECTION AND ACCESS ISSUE (April 1998), for a more thorough, thoughtful, and balanced look at the issues.
293. But see Gordon, supra note 135, at 1356-57 (distinguishing among "rights of exclusion, rights against harm or interference, and rights over the benefits their property yields"). Professor Hamilton, in a letter to House of Representatives chair Howard Coble, persuasively rebutted the bill's attempt to sidestep Feist's constitutional bar on protection for nonoriginal material: H.R. 2652 attempts to sidestep [the constitutional] problem through the label "misappropriation," as though Congress has created a tort rather than a property right. The label, however, does not gainsay the fact that the bill plainly attempts to create property rights in information by excluding others from using the database without permission and providing civil and criminal remedies against those who trespass on such data. In the context of Feist, the "misappropriation" label rings as a pretext. Hamilton Letter, supra note 32, at 3. Professor Jane Ginsburg, in an article published after Feist, agreed that the Copyright Clause acts as a limitation on the Commerce Clause. She nevertheless took the position, en passant, that Congress could enact a "Commerce Clause-derived statute barring misappropriation of compiled information . . . as long as the [statute] departs in significant ways from the copyright model." Jane C. Ginsburg, No "Sweat"? Copyright and Other Protection of Works of Information After Feist v. Rural Telephone, 92 COLUM. L. REV. 338, 371 (1992). "Appropriate and meaningful departures" include a shorter term of protection, compulsory licensing, as well as granting "more, rather than less, protection." Id. at 371-72. Compare this reasoning to the Supreme Court's discussion in Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974), in which the Court gave as one reason for the lack of preemption of state trade secret protection the fact that "[t]rade secret protection provides far weaker protection in many respects than the patent law." Id. at 489-90 (citation omitted). With all due respect to Professor Ginsburg, I believe none of these represent departures sufficient to avoid a conflict with the Copyright Clause; none of them change the nature of the right granted, they only tinker at the margins of the scope of the right granted. The term of copyright protection is 75 years for works created by corporations. See 17 U.S.C. § 302(c) (1994). How many fewer years make the nature rather than the scope of protection significantly different? Professor Ginsburg's argument concerning compulsory licensing deserves closer consideration, however. Although compulsory licensing is rife in the Copyright Act, see e.g., 17 U.S.C. §§ 111, 114, 115, 118, & 119, one must admit that if the essence of an exclusive right is the ability to say "no," a compulsory license "liability right" veers away from a copyright right. We do not need to definitively address the property versus liability issue in the present context, however, because even a compulsory license impermissibly conflicts with the public's constitutional right to copy unoriginal material without payment. For further discussion of this point, see Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865 (1990); and Peter A. Jaszi, Goodbye to All That - a Reluctant (and Perhaps Premature) Adieu to Constitutionally-Grounded Discourse of Public Interest in Copyright Law, 29 VAND. J. TRANSNAT'L L. 595 (1996). The Copyright Office, in what regrettably it passes off as analysis these days, has produced only an extremely brief discussion of the important constitutional issues. See REPORT OF THE U.S. COPYRIGHT OFFICE ON THE LEGAL PROTECTION OF DATABASES 107-115 (Aug. 1997) (arguing that "[p]rotecting the investment in databases may be seen as distinct from protecting original authorship through copyright," the report suggests Congress may not run afoul of the specific restrictions in the Copyright Clause), available in 〈http://lcweb.loc.gov/copyright/ cpypub/db4.wp〉. But Congress is not directly protecting investment in the proposed bill; it is granting a property right in an unoriginal database, and granting rights that are equivalent to those granted under the Copyright Act. Cf. REPORT OF THE PATENT AND TRADEMARK OFFICE ON RECOMMENDATIONS FROM APRIL 1998 CONFERENCE ON DATABASE PROTECTION AND ACCESS ISSUE (April 1998), for a more thorough, thoughtful, and balanced look at the issues.
294. But see Gordon, supra note 135, at 1356-57 (distinguishing among "rights of exclusion, rights against harm or interference, and rights over the benefits their property yields"). Professor Hamilton, in a letter to House of Representatives chair Howard Coble, persuasively rebutted the bill's attempt to sidestep Feist's constitutional bar on protection for nonoriginal material: H.R. 2652 attempts to sidestep [the constitutional] problem through the label "misappropriation," as though Congress has created a tort rather than a property right. The label, however, does not gainsay the fact that the bill plainly attempts to create property rights in information by excluding others from using the database without permission and providing civil and criminal remedies against those who trespass on such data. In the context of Feist, the "misappropriation" label rings as a pretext. Hamilton Letter, supra note 32, at 3. Professor Jane Ginsburg, in an article published after Feist, agreed that the Copyright Clause acts as a limitation on the Commerce Clause. She nevertheless took the position, en passant, that Congress could enact a "Commerce Clause-derived statute barring misappropriation of compiled information . . . as long as the [statute] departs in significant ways from the copyright model." Jane C. Ginsburg, No "Sweat"? Copyright and Other Protection of Works of Information After Feist v. Rural Telephone, 92 COLUM. L. REV. 338, 371 (1992). "Appropriate and meaningful departures" include a shorter term of protection, compulsory licensing, as well as granting "more, rather than less, protection." Id. at 371-72. Compare this reasoning to the Supreme Court's discussion in Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974), in which the Court gave as one reason for the lack of preemption of state trade secret protection the fact that "[t]rade secret protection provides far weaker protection in many respects than the patent law." Id. at 489-90 (citation omitted). With all due respect to Professor Ginsburg, I believe none of these represent departures sufficient to avoid a conflict with the Copyright Clause; none of them change the nature of the right granted, they only tinker at the margins of the scope of the right granted. The term of copyright protection is 75 years for works created by corporations. See 17 U.S.C. § 302(c) (1994). How many fewer years make the nature rather than the scope of protection significantly different? Professor Ginsburg's argument concerning compulsory licensing deserves closer consideration, however. Although compulsory licensing is rife in the Copyright Act, see e.g., 17 U.S.C. §§ 111, 114, 115, 118, & 119, one must admit that if the essence of an exclusive right is the ability to say "no," a compulsory license "liability right" veers away from a copyright right. We do not need to definitively address the property versus liability issue in the present context, however, because even a compulsory license impermissibly conflicts with the public's constitutional right to copy unoriginal material without payment. For further discussion of this point, see Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865 (1990); and Peter A. Jaszi, Goodbye to All That - a Reluctant (and Perhaps Premature) Adieu to Constitutionally-Grounded Discourse of Public Interest in Copyright Law, 29 VAND. J. TRANSNAT'L L. 595 (1996). The Copyright Office, in what regrettably it passes off as analysis these days, has produced only an extremely brief discussion of the important constitutional issues. See REPORT OF THE U.S. COPYRIGHT OFFICE ON THE LEGAL PROTECTION OF DATABASES 107-115 (Aug. 1997) (arguing that "[p]rotecting the investment in databases may be seen as distinct from protecting original authorship through copyright," the report suggests Congress may not run afoul of the specific restrictions in the Copyright Clause), available in 〈http://lcweb.loc.gov/copyright/ cpypub/db4.wp〉. But Congress is not directly protecting investment in the proposed bill; it is granting a property right in an unoriginal database, and granting rights that are equivalent to those granted under the Copyright Act. Cf. REPORT OF THE PATENT AND TRADEMARK OFFICE ON RECOMMENDATIONS FROM APRIL 1998 CONFERENCE ON DATABASE PROTECTION AND ACCESS ISSUE (April 1998), for a more thorough, thoughtful, and balanced look at the issues.
295. But see Gordon, supra note 135, at 1356-57 (distinguishing among "rights of exclusion, rights against harm or interference, and rights over the benefits their property yields"). Professor Hamilton, in a letter to House of Representatives chair Howard Coble, persuasively rebutted the bill's attempt to sidestep Feist's constitutional bar on protection for nonoriginal material: H.R. 2652 attempts to sidestep [the constitutional] problem through the label "misappropriation," as though Congress has created a tort rather than a property right. The label, however, does not gainsay the fact that the bill plainly attempts to create property rights in information by excluding others from using the database without permission and providing civil and criminal remedies against those who trespass on such data. In the context of Feist, the "misappropriation" label rings as a pretext. Hamilton Letter, supra note 32, at 3. Professor Jane Ginsburg, in an article published after Feist, agreed that the Copyright Clause acts as a limitation on the Commerce Clause. She nevertheless took the position, en passant, that Congress could enact a "Commerce Clause-derived statute barring misappropriation of compiled information . . . as long as the [statute] departs in significant ways from the copyright model." Jane C. Ginsburg, No "Sweat"? Copyright and Other Protection of Works of Information After Feist v. Rural Telephone, 92 COLUM. L. REV. 338, 371 (1992). "Appropriate and meaningful departures" include a shorter term of protection, compulsory licensing, as well as granting "more, rather than less, protection." Id. at 371-72. Compare this reasoning to the Supreme Court's discussion in Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974), in which the Court gave as one reason for the lack of preemption of state trade secret protection the fact that "[t]rade secret protection provides far weaker protection in many respects than the patent law." Id. at 489-90 (citation omitted). With all due respect to Professor Ginsburg, I believe none of these represent departures sufficient to avoid a conflict with the Copyright Clause; none of them change the nature of the right granted, they only tinker at the margins of the scope of the right granted. The term of copyright protection is 75 years for works created by corporations. See 17 U.S.C. § 302(c) (1994). How many fewer years make the nature rather than the scope of protection significantly different? Professor Ginsburg's argument concerning compulsory licensing deserves closer consideration, however. Although compulsory licensing is rife in the Copyright Act, see e.g., 17 U.S.C. §§ 111, 114, 115, 118, & 119, one must admit that if the essence of an exclusive right is the ability to say "no," a compulsory license "liability right" veers away from a copyright right. We do not need to definitively address the property versus liability issue in the present context, however, because even a compulsory license impermissibly conflicts with the public's constitutional right to copy unoriginal material without payment. For further discussion of this point, see Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865 (1990); and Peter A. Jaszi, Goodbye to All That - a Reluctant (and Perhaps Premature) Adieu to Constitutionally-Grounded Discourse of Public Interest in Copyright Law, 29 VAND. J. TRANSNAT'L L. 595 (1996). The Copyright Office, in what regrettably it passes off as analysis these days, has produced only an extremely brief discussion of the important constitutional issues. See REPORT OF THE U.S. COPYRIGHT OFFICE ON THE LEGAL PROTECTION OF DATABASES 107-115 (Aug. 1997) (arguing that "[p]rotecting the investment in databases may be seen as distinct from protecting original authorship through copyright," the report suggests Congress may not run afoul of the specific restrictions in the Copyright Clause), available in 〈http://lcweb.loc.gov/copyright/ cpypub/db4.wp〉. But Congress is not directly protecting investment in the proposed bill; it is granting a property right in an unoriginal database, and granting rights that are equivalent to those granted under the Copyright Act. Cf. REPORT OF THE PATENT AND TRADEMARK OFFICE ON RECOMMENDATIONS FROM APRIL 1998 CONFERENCE ON DATABASE PROTECTION AND ACCESS ISSUE (April 1998), for a more thorough, thoughtful, and balanced look at the issues.
296. But see Gordon, supra note 135, at 1356-57 (distinguishing among "rights of exclusion, rights against harm or interference, and rights over the benefits their property yields"). Professor Hamilton, in a letter to House of Representatives chair Howard Coble, persuasively rebutted the bill's attempt to sidestep Feist's constitutional bar on protection for nonoriginal material: H.R. 2652 attempts to sidestep [the constitutional] problem through the label "misappropriation," as though Congress has created a tort rather than a property right. The label, however, does not gainsay the fact that the bill plainly attempts to create property rights in information by excluding others from using the database without permission and providing civil and criminal remedies against those who trespass on such data. In the context of Feist, the "misappropriation" label rings as a pretext. Hamilton Letter, supra note 32, at 3. Professor Jane Ginsburg, in an article published after Feist, agreed that the Copyright Clause acts as a limitation on the Commerce Clause. She nevertheless took the position, en passant, that Congress could enact a "Commerce Clause-derived statute barring misappropriation of compiled information . . . as long as the [statute] departs in significant ways from the copyright model." Jane C. Ginsburg, No "Sweat"? Copyright and Other Protection of Works of Information After Feist v. Rural Telephone, 92 COLUM. L. REV. 338, 371 (1992). "Appropriate and meaningful departures" include a shorter term of protection, compulsory licensing, as well as granting "more, rather than less, protection." Id. at 371-72. Compare this reasoning to the Supreme Court's discussion in Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974), in which the Court gave as one reason for the lack of preemption of state trade secret protection the fact that "[t]rade secret protection provides far weaker protection in many respects than the patent law." Id. at 489-90 (citation omitted). With all due respect to Professor Ginsburg, I believe none of these represent departures sufficient to avoid a conflict with the Copyright Clause; none of them change the nature of the right granted, they only tinker at the margins of the scope of the right granted. The term of copyright protection is 75 years for works created by corporations. See 17 U.S.C. § 302(c) (1994). How many fewer years make the nature rather than the scope of protection significantly different? Professor Ginsburg's argument concerning compulsory licensing deserves closer consideration, however. Although compulsory licensing is rife in the Copyright Act, see e.g., 17 U.S.C. §§ 111, 114, 115, 118, & 119, one must admit that if the essence of an exclusive right is the ability to say "no," a compulsory license "liability right" veers away from a copyright right. We do not need to definitively address the property versus liability issue in the present context, however, because even a compulsory license impermissibly conflicts with the public's constitutional right to copy unoriginal material without payment. For further discussion of this point, see Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865 (1990); and Peter A. Jaszi, Goodbye to All That - a Reluctant (and Perhaps Premature) Adieu to Constitutionally-Grounded Discourse of Public Interest in Copyright Law, 29 VAND. J. TRANSNAT'L L. 595 (1996). The Copyright Office, in what regrettably it passes off as analysis these days, has produced only an extremely brief discussion of the important constitutional issues. See REPORT OF THE U.S. COPYRIGHT OFFICE ON THE LEGAL PROTECTION OF DATABASES 107-115 (Aug. 1997) (arguing that "[p]rotecting the investment in databases may be seen as distinct from protecting original authorship through copyright," the report suggests Congress may not run afoul of the specific restrictions in the Copyright Clause), available in 〈http://lcweb.loc.gov/copyright/ cpypub/db4.wp〉. But Congress is not directly protecting investment in the proposed bill; it is granting a property right in an unoriginal database, and granting rights that are equivalent to those granted under the Copyright Act. Cf. REPORT OF THE PATENT AND TRADEMARK OFFICE ON RECOMMENDATIONS FROM APRIL 1998 CONFERENCE ON DATABASE PROTECTION AND ACCESS ISSUE (April 1998), for a more thorough, thoughtful, and balanced look at the issues.
297. But see Gordon, supra note 135, at 1356-57 (distinguishing among "rights of exclusion, rights against harm or interference, and rights over the benefits their property yields"). Professor Hamilton, in a letter to House of Representatives chair Howard Coble, persuasively rebutted the bill's attempt to sidestep Feist's constitutional bar on protection for nonoriginal material: H.R. 2652 attempts to sidestep [the constitutional] problem through the label "misappropriation," as though Congress has created a tort rather than a property right. The label, however, does not gainsay the fact that the bill plainly attempts to create property rights in information by excluding others from using the database without permission and providing civil and criminal remedies against those who trespass on such data. In the context of Feist, the "misappropriation" label rings as a pretext. Hamilton Letter, supra note 32, at 3. Professor Jane Ginsburg, in an article published after Feist, agreed that the Copyright Clause acts as a limitation on the Commerce Clause. She nevertheless took the position, en passant, that Congress could enact a "Commerce Clause-derived statute barring misappropriation of compiled information . . . as long as the [statute] departs in significant ways from the copyright model." Jane C. Ginsburg, No "Sweat"? Copyright and Other Protection of Works of Information After Feist v. Rural Telephone, 92 COLUM. L. REV. 338, 371 (1992). "Appropriate and meaningful departures" include a shorter term of protection, compulsory licensing, as well as granting "more, rather than less, protection." Id. at 371-72. Compare this reasoning to the Supreme Court's discussion in Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974), in which the Court gave as one reason for the lack of preemption of state trade secret protection the fact that "[t]rade secret protection provides far weaker protection in many respects than the patent law." Id. at 489-90 (citation omitted). With all due respect to Professor Ginsburg, I believe none of these represent departures sufficient to avoid a conflict with the Copyright Clause; none of them change the nature of the right granted, they only tinker at the margins of the scope of the right granted. The term of copyright protection is 75 years for works created by corporations. See 17 U.S.C. § 302(c) (1994). How many fewer years make the nature rather than the scope of protection significantly different? Professor Ginsburg's argument concerning compulsory licensing deserves closer consideration, however. Although compulsory licensing is rife in the Copyright Act, see e.g., 17 U.S.C. §§ 111, 114, 115, 118, & 119, one must admit that if the essence of an exclusive right is the ability to say "no," a compulsory license "liability right" veers away from a copyright right. We do not need to definitively address the property versus liability issue in the present context, however, because even a compulsory license impermissibly conflicts with the public's constitutional right to copy unoriginal material without payment. For further discussion of this point, see Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865 (1990); and Peter A. Jaszi, Goodbye to All That - a Reluctant (and Perhaps Premature) Adieu to Constitutionally-Grounded Discourse of Public Interest in Copyright Law, 29 VAND. J. TRANSNAT'L L. 595 (1996). The Copyright Office, in what regrettably it passes off as analysis these days, has produced only an extremely brief discussion of the important constitutional issues. See REPORT OF THE U.S. COPYRIGHT OFFICE ON THE LEGAL PROTECTION OF DATABASES 107-115 (Aug. 1997) (arguing that "[p]rotecting the investment in databases may be seen as distinct from protecting original authorship through copyright," the report suggests Congress may not run afoul of the specific restrictions in the Copyright Clause), available in 〈http://lcweb.loc.gov/copyright/ cpypub/db4.wp〉. But Congress is not directly protecting investment in the proposed bill; it is granting a property right in an unoriginal database, and granting rights that are equivalent to those granted under the Copyright Act. Cf. REPORT OF THE PATENT AND TRADEMARK OFFICE ON RECOMMENDATIONS FROM APRIL 1998 CONFERENCE ON DATABASE PROTECTION AND ACCESS ISSUE (April 1998), for a more thorough, thoughtful, and balanced look at the issues.
298. But see Gordon, supra note 135, at 1356-57 (distinguishing among "rights of exclusion, rights against harm or interference, and rights over the benefits their property yields"). Professor Hamilton, in a letter to House of Representatives chair Howard Coble, persuasively rebutted the bill's attempt to sidestep Feist's constitutional bar on protection for nonoriginal material: H.R. 2652 attempts to sidestep [the constitutional] problem through the label "misappropriation," as though Congress has created a tort rather than a property right. The label, however, does not gainsay the fact that the bill plainly attempts to create property rights in information by excluding others from using the database without permission and providing civil and criminal remedies against those who trespass on such data. In the context of Feist, the "misappropriation" label rings as a pretext. Hamilton Letter, supra note 32, at 3. Professor Jane Ginsburg, in an article published after Feist, agreed that the Copyright Clause acts as a limitation on the Commerce Clause. She nevertheless took the position, en passant, that Congress could enact a "Commerce Clause-derived statute barring misappropriation of compiled information . . . as long as the [statute] departs in significant ways from the copyright model." Jane C. Ginsburg, No "Sweat"? Copyright and Other Protection of Works of Information After Feist v. Rural Telephone, 92 COLUM. L. REV. 338, 371 (1992). "Appropriate and meaningful departures" include a shorter term of protection, compulsory licensing, as well as granting "more, rather than less, protection." Id. at 371-72. Compare this reasoning to the Supreme Court's discussion in Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974), in which the Court gave as one reason for the lack of preemption of state trade secret protection the fact that "[t]rade secret protection provides far weaker protection in many respects than the patent law." Id. at 489-90 (citation omitted). With all due respect to Professor Ginsburg, I believe none of these represent departures sufficient to avoid a conflict with the Copyright Clause; none of them change the nature of the right granted, they only tinker at the margins of the scope of the right granted. The term of copyright protection is 75 years for works created by corporations. See 17 U.S.C. § 302(c) (1994). How many fewer years make the nature rather than the scope of protection significantly different? Professor Ginsburg's argument concerning compulsory licensing deserves closer consideration, however. Although compulsory licensing is rife in the Copyright Act, see e.g., 17 U.S.C. §§ 111, 114, 115, 118, & 119, one must admit that if the essence of an exclusive right is the ability to say "no," a compulsory license "liability right" veers away from a copyright right. We do not need to definitively address the property versus liability issue in the present context, however, because even a compulsory license impermissibly conflicts with the public's constitutional right to copy unoriginal material without payment. For further discussion of this point, see Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865 (1990); and Peter A. Jaszi, Goodbye to All That - a Reluctant (and Perhaps Premature) Adieu to Constitutionally-Grounded Discourse of Public Interest in Copyright Law, 29 VAND. J. TRANSNAT'L L. 595 (1996). The Copyright Office, in what regrettably it passes off as analysis these days, has produced only an extremely brief discussion of the important constitutional issues. See REPORT OF THE U.S. COPYRIGHT OFFICE ON THE LEGAL PROTECTION OF DATABASES 107-115 (Aug. 1997) (arguing that "[p]rotecting the investment in databases may be seen as distinct from protecting original authorship through copyright," the report suggests Congress may not run afoul of the specific restrictions in the Copyright Clause), available in 〈http://lcweb.loc.gov/copyright/ cpypub/db4.wp〉. But Congress is not directly protecting investment in the proposed bill; it is granting a property right in an unoriginal database, and granting rights that are equivalent to those granted under the Copyright Act. Cf. REPORT OF THE PATENT AND TRADEMARK OFFICE ON RECOMMENDATIONS FROM APRIL 1998 CONFERENCE ON DATABASE PROTECTION AND ACCESS ISSUE (April 1998), for a more thorough, thoughtful, and balanced look at the issues.
299. Professor Hamilton has noted this larger, topological, constitutional concern and argues that suggestions for protection of information under the Commerce Clause "miss[ ] the important point that the Copyright Clause's commodification of original works presupposes that unoriginal works will not be commodified." Hamilton, supra note 87, at 30.