Making sense of the intellectual property clause: Promotion of progress as a limitation on congress's intellectual property power

Georgetown Law Journal

Volumn 94, Issue 6, 2006, Pages 1771-1845

  Oliar, Dotan ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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EID: 33749584041     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (395)

1. See U.S. CONST. art. I, § 8, cl. 8 ("[Congress shall have the power] [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"). The first half of the Clause will be termed "Progress Clause" and the second "Exclusive Rights Clause." "Intellectual Property Clause" is somewhat inaccurate because (1) the term "intellectual property" was not used when the Clause was authored, (2) the Clause does not encompass all areas of law that we generally associate today with "intellectual property," (3) the Clause does not exhaust Congress's intellectual property power (e.g., Congress's trademark power stems from its commerce power), and (4) the exclusive rights that Congress secures under the Clause are generally more limited in term and scope than property rights. Other terms suggested to date for the Clause (e.g., "Progress Clause," "Exclusive Rights Clause," "Science and Useful Arts Clause") also fail to describe it accurately. The present research, especially in Part V, infra, leads me to believe that "Progress by Limited Rights Clause" best captures the nature of the unique power in the Clause. This name will not be used here, however, in order not to encumber the reader with new terminology.
2. See generally Pamela Samuelson, The Constitutional Law of Intellectual Property After Eldred v. Ashcroft, 50 J. COPYRIGHT SOC'Y U.S.A. 547 (2003) (reviewing the Supreme Court's constitutional intellectual property jurisprudence and pointing to questions that are yet to be resolved);
3. Symposium, Eldred v. Ashcroft: Intellectual Property, Congressional Power, and the Constitution, 36 LOY. L.A. L. REV. 1 (2003);
4. Symposium, The Constitutionalization of Technology Law, 15 BERKELEY TECH. L.J. 529 (2000).
5. Eldred v. Ashcroft, 537 U.S. 186 (2003) (affirming the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998 (CTEA) under the Clause's "limited times" prescription); Luck's Music Library v. Gonzales, 407 F.3d 1262 (D.C. Cir. 2005) (finding section 514 of the Uruguay Round Agreements Act of 1994 constitutional under the Clause); Golan v. Gonzales, No. Civ. 01-B-1854 (BNB), 2005 WL 914754, at *16 (D. Colo. Apr. 20, 2005) (mem.) (finding section 514 of the Uruguay Round Agreements Act of 1994 constitutional under the Clause), appeal filed, No. 05-1259 (10th Cir. July 18, 2005); Kahle v. Ashcroft, No. C-04-1127 MMC, 2004 WL 2663157, at *16 (N.D. Cal. Nov. 14, 2004) (finding the Copyright Act of 1976, the Berne Convention Implementation Act of 1988, and the Copyright Renewal Act of 1992 constitutional), appeal filed, No. 04-17434 (9th Cir. Jan. 19, 2005); see also Universal City Studios, Inc. v. Corley, 273 F.3d 429, 444-45 (2d Cir. 2000) (refusing to consider whether the Digital Millennium Copyright Act of 1998 violated the "limited times" limitation); United States v. Moghadam, 175 F.3d 1269, 1282 (11th Cir. 1999) (finding 18 U.S.C. § 2319A, a criminal anti-bootlegging provision, constitutional under the Commerce Clause as an alternative to the Intellectual Property Clause); KISS Catalog v. Passport Int'l Prods., 350 F. Supp. 2d 823, 837 (C.D. Cal. 2004) (finding 17 U.S.C. § 1101(a)(3), a civil anti-bootlegging provision, unconstitutional because it violates the "limited times" limitation in the Clause and that the Commerce Clause cannot serve as an alternative legislative grounds), rev'd, 405 F. Supp. 2d 1169, 1173 (C.D. Cal. 2005) (finding the anti-bootlegging provision constitutional under the Commerce Clause while reversing the finding that the provision is "fundamentally inconsistent" with the Clause); United States v. Martignon, 346 F. Supp. 2d 413, 428-29 (S.D.N.Y. 2004) (finding 18 U.S.C. § 2319A, a criminal anti-bootlegging provision, unconstitutional because it violates the "limited times" and "writings" limitations in the Intellectual Property Clause and that the Commerce Clause cannot serve as an alternative legislative grounds); United States v. Elcom Ltd., 203 F. Supp. 2d 1111, 1141-42 (N.D. Cal. 2002) (denying a constitutionality challenge under the Clause to the Digital Millennium Copyright Act of 1998); Figueroa v. United States, 66 Fed. Cl. 139, 152 (2005) (finding that governmental use of patent fees for non-patent ends is constitutional under the Necessary and Proper Clause in conjunction with the Progress Clause). In addition, many intellectual property enactments have been challenged on non-Clause constitutional grounds (most notably the First Amendment). These challenges are beyond the scope of this Article.
6. See Jessica D. Litman, Copyright, Compromise, and Legislative History, 72 CORNELL L. REV. 857, 861, 903 (1987);
7. Jessica D. Litman, Copyright Legislation and Technological Change, 68 OR. L. REV. 275, 276 (1989).
8. 537 U.S. 186 (2003).
9. See Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified at 17 U.S.C. §§ 108, 203, 301-304 (2000)).
10. See Eldred, 537 U.S. at 199, 204.
11. See, e.g., LAWRENCE LESSIG, FREE CULTURE 218 (2004) (noting that more than two-thirds of the original sponsors of CTEA in the House and Senate received contributions from Disney and that "Disney is estimated to have contributed more than $800,000 to reelection campaigns in the 1998 cycle"). But for CTEA, Mickey Mouse comics would have fallen into the public domain starting in 2003.
12. For more about the Act, see generally Christina N. Gifford, The Sonny Bono Copyright Term Extension Act, 30 U. MEM. L. REV. 363 (2000).
13. See Eldred, 537 U.S. at 193.
14. U.S. CONST. art. I, § 8, cl. 2.
15. Id. art. I., § 8, cl. 3.
16. Id. art. I, § 8, cl. 8 ("To promote the Progress of Science and useful Arts").
17. Id. ("by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries").
18. See infra notes 45-46.
19. See infra notes 40-44 and accompanying text.
20. Recent years have seen a boom in historical intellectual property scholarship. See, e.g., DORON S. BEN-ATAR, TRADE SECRETS: INTELLECTUAL PIRACY AND THE ORIGINS OF AMERICAN INDUSTRIAL POWER (2004);
21. B. ZORINA KHAN, THE DEMOCRATIZATION OF INVENTION: PATENTS AND COPYRIGHTS IN AMERICAN ECONOMIC DEVELOPMENT, 1790-1920 (2005);
22. EDWARD C. WALTERSCHEID, THE NATURE OF THE INTELLECTUAL PROPERTY CLAUSE: A STUDY IN HISTORICAL PERSPECTIVE (2002);
23. Paul J. Heald & Suzanna Sherry, Implied Limits on the Legislative Power: The Intellectual Property Clause as an Absolute Constraint on Congress, 2000 U. ILL. L. REV. 1119 (2000);
24. Thomas B. Nachbar, Intellectual Property and Constitutional Norms, 104 COLUM. L. REV. 272 (2004);
25. Tyler T. Ochoa & Mark Rose, The Anti-Monopoly Origins of the Patent and Copyright Clause, 84 J. PAT. & TRADEMARK OFF. SOC'Y 909 (2002);
26. Malla Pollack, What Is Congress Supposed to Promote?: Defining "Progress" in Article I, Section 8, Clause 8 of the United States Constitution, or Introducing the Progress Clause, 80 NEB. L. REV. 754 (2001);
27. Paul M. Schwartz & William Michael Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property, 112 YALE L.J. 2331 (2003);
28. Symposium, Intellectual Property at a Crossroads: The Use of the Past in Intellectual Property Jurisprudence, 38 LOY. L.A. L. REV. 1 (2004);
29. Edward C. Walterscheid, To Promote the Progress of Science and Useful Arts: The Background and Origin of the Intellectual Property Clause of the United States Constitution, 2 J. INTELL. PROP. L. 1 (1994);
30. Oren Braha, Owning Ideas: A History of Anglo-American Intellectual Property (2005) (S.J.D. dissertation, Harvard Law School), available at http://www.obracha.net/oi/oi.htm;
31. William W. Fisher III, The Growth of Intellectual Property: A History of the Ownership of Ideas in the United States, http://cyber.law.harvard.edu/ people/tfisher/iphistory.pdf.
32. See, e.g., Eldred v. Ashcroft, 537 U.S. 186, 260 (2003) (Breyer, J., dissenting) (mentioning "the antimonopoly environment in which the Framers wrote the Clause," which suggests the way the Framers understood "the basic purpose of the Copyright Clause"); Lawrence Lessig, Copyright's First Amendment, 48 UCLA L. REV. 1057, 1062 (2001) ("The great evil in the Framers' mind, second only to the great evil of centralized, monarchical government, was the evil of state-sanctioned monopoly.").
33. See, e.g., Graham v. John Deere Co., 383 U.S. 1, 7-8 (1966); Heald & Sherry, supra note 16, at 1142-54; Ochoa & Rose, supra note 16, at 928.
34. See Nachbar, supra note 16, at 330-49; see also infra note 78 and accompanying text.
35. See, e.g., Graham, 383 U.S. at 7-10.
36. Schwartz & Treanor, supra note 16, at 2383. See also infra note 84. Jefferson opposed Congress's intellectual property power. See infra text accompanying note 173. The fact that the Constitution includes the Clause suggests that his views were not representative. Jefferson was a minister to France when the Convention sat.
37. As a part of the vast historical commentary surrounding the case, two historically oriented amicus briefs were filed with the Supreme Court. See Brief Amici Curiae of Tyler T. Ochoa et al. in Support of Petitioners, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618), 2002 WL 1051765; Brief of Malla Pollack, Amicus Curiae Supporting Petitioners, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618), 2002 WL 1051763.
38. The literature has extensively addressed other pre-framing and post-framing occurrences. For the most part, these will be left out of the present study both because they have been reviewed elsewhere and, primarily, because that research has proven inconclusive regarding the Framers' intent.
39. See infra Part IV. The suggestion that the Progress Clause was intended as a limitation comes to answer the major question posed at the beginning of this Article and not to suggest that it functions only as a limitation. The Progress Clause also participates in defining the power. See infra Part V.
40. See infra note 244 and accompanying text.
41. See Eldred, 537 U.S. at 211 ("[P]etitioners do not argue that the Clause's preamble is an independently enforceable limit on Congress' power."); Timothy R. Holbrook, The Treaty Power and the Patent Clause: Are There Limits on the United States' Ability to Harmonize?, 22 CARDOZO ARTS & ENT. L.J. 1, 16 (2004) ("[The Eldred Court] did not reach the issue of whether the preamble limits Congress' power with respect to the patent and copyright systems.");
42. Edward C. Walterscheid, The Preambular Argument: The Dubious Premise of Eldred v. Ashcroft, 44 IDEA 331, 331-34 (2004) (same).
43. See infra notes 300-02. For the various arguments that inform constitutional analysis generally, see PHILLIP BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION (1982).
44. See Guido Calabresi and Douglas A. Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1089 & n.2 (1972).
45. See infra notes 45-46.
46. See infra notes 40-44 and accompanying text.
47. See infra notes 48-56 and accompanying text.
48. See generally references supra note 16.
49. See infra Part V.
50. See infra Part VI.A.
51. See BOBBITT, supra note 27.
52. See 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 52 (3d ed. 2000) ("To the degree that original meaning would at least establish a baseline and create a presumption to be overcome, its gravitational pull remains undeniable.");
53. Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204, 237 (1980) (noting that nonoriginalists "treat[] the text and original history as presumptively binding and limiting, but as neither a necessary nor sufficient condition for constitutional desicionmaking").
54. See 1 TRIBE, supra note 36, at 48-49 (arguing that interpretation of the Constitution ought to begin with original meaning, and that the burden of justification should be placed on whomever seeks to argue for a changed meaning).
55. See 537 U.S. 186 (2003).
56. See id. at 222.
57. Id. at 200 (quoting N.Y. Trust Co. v. Eisner, 256 U.S. 345, 349 (1921)).
58. See id. at 208 (refusing to second-guess Congress's policy judgments "however debatable or arguably unwise they may be").
59. See id. at 246 (Breyer, J., dissenting) (suggesting that in stating that the ultimate purpose of copyright law is public rather than private, "the Court simply has reiterated the views of the Founders"); id. at 246-47 (reviewing the founding generation's abhorrence of monopolies); id. at 260-61 (reviewing the constitutionality of the CTEA in light of "the basic purpose of the Copyright Clause - as understood by the Framers"); id. at 265 (discussing prior copyright statutes); see also id. at 209 n.16 (majority opinion) ("Justice BREYER several times places the Founding Fathers on his side.").
60. See id. at 229-31 (Stevens, J., dissenting).
61. Id. at 233 (internal quotation marks omitted).
62. See, e.g., id. at 204 n.8 (majority opinion) (relying on Madison's and other Framers' understanding of Congress's power under the Clause); id. at 194, 196 n.3, 197, 200, 204, 213 & n.19, 214 n.20 (noting or relying seven times on the fact that the First Congress granted copyright protection to previously existing works); id. at 210 n.16 (rejecting dissenting Justice Breyer's assessment of the copyright term extension according to the present value it provides authors because "[i]t is doubtful, however, that those architects of our Nation, in framing the 'limited Times' prescription, thought in terms of the calculator rather than the calendar"); id. at 213 ("Indeed, '[t]his Court has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given [the Constitution's] provisions.'" (quoting Myers v. U.S., 272 U.S. 52, 175 (1926))); id. at 222 ("[a]s we read the Framers' instruction"); id. at 228-33 (Stevens, J., dissenting) (dedicating considerable attention to studying "early Congresses' understanding of the constitutional limits of the Copyright/Patent Clause" and reviewing the legislative history of the first patent and copyright acts); id. at 246-48 (Breyer, J., dissenting) (reviewing the founders' objectives in the Clause and their abhorrence of monopolies and consulting a 1773 dictionary to interpret "limited"); Harper & Row Publishers v. Nation Enters., 471 U.S. 539, 558 (1985) (downplaying the conflict between the Clause and First Amendment principles because "the Framers intended copyright itself to be the engine of free expression"); Shultz v. Moore, 419 U.S. 930, 931 (1974) (noting that the Framers intended exclusive rights in inventions to be granted only if there were a distinctive contribution to the advancement of scientific knowledge); Graham v. John Deere Co., 383 U.S. 1, 5-6 (1966) (noting that Congress should exercise its intellectual property power as to best effectuate the Framers' purpose); Int'l News Serv. v. Associated Press, 248 U.S. 215, 234 (1918) (rejecting the copyrightability of facts because "[i]t is not to be supposed that the framers of the Constitution . . . intended to confer upon one who might happen to be the first to report a historic event the exclusive right for any period to spread the knowledge of it"); Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57 (1884) ("The construction placed upon the Constitution by the first act of 1790 . . . by the men who were contemporary with its formation, many of whom were members of the convention which framed it, is . . . entitled to very great weight . . . .").
63. See, e.g., Eldred, 537 U.S. at 199 (looking at dictionaries contemporaneous with the Founding in order to understand the meaning of the word "limited" in the Clause); id. at 245 (Breyer, J., dissenting) (interpreting the word "science" in the Clause to mean knowledge or learning, which was arguably its meaning at the time of the Founding); Graham v. John Deere Co., 383 U.S. 1, 5-6 (1966) (interpreting the Clause against the backdrop of sentiments towards monopolies contemporaneous with the founding).
64. See, e.g., Dan T. Coenen & Paul J. Heald, Means/Ends Analysis in Copyright Law: Eldred v. Ashcroft in One Act, 36 LOY. L.A. L. REV. 99, 105-06 (2002) ("[The Progress Clause] is striking. [No] other clause in the Constitution . . . is structured in this sort of way.");
65. Lawrence B. Solum, Congress's Power to Promote the Progress of Science: Eldred v. Ashcroft, 36 LOY. L.A. L. REV. 1, 20 (2002) (noting that the Intellectual Property Clause is structured differently than the other clauses in Section Eight of Article I).
66. Dominant is meant in the sense of most influential doctrinally, being advanced by the leading treatise on copyright - Nimmer on Copyright - and by the D.C. Circuit, the only circuit court that has addressed the question directly and repeatedly.
67. See 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 1.03 (2004) [hereinafter NIMMER] ("This introductory phrase is in the main explanatory of the purpose of copyright, without in itself constituting a rigid standard against which any copyright act must be measured."); id. § 1.03[B] ("[T]he introductory phrase, rather than constituting a limitation on Congressional authority, has for the most part tended to expand such authority." (footnote omitted)).
68. Id. § 1.03[A] (footnotes omitted).
69. For a judicial expression that suggests the non-enforceability of the Progress Clause, see, for example, Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 168 (1989) ("It is for Congress to determine if the present system [is effectual in promoting the goals of the Intellectual Property Clause] . . . .").
70. See, e.g., Scott M. Martin, The Mythology of the Public Domain: Exploring the Myths Behind Attacks on the Duration of Copyright Protection, 36 LOY. L.A. L. REV. 253, 299 (2002) (relying on Nimmer in suggesting that the Progress Clause is not a limitation);
71. Ralph Oman, The Copyright Clause: "A Charter for A Living People," 17 U. BALT. L. REV. 99, 104 (1987-1988) (relying on Nimmer in suggesting that the Progress Clause "is mainly explanatory of the purpose of copyright").
72. See Brief for the Respondents at 18-19, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618), 2002 WL 1836720 (relying on Nimmer in arguing that the Progress Clause does not limit Congress's power).
73. See Hutchinson Tel. Co. v. Fronteer Directory Co. of Minn., 770 F.2d 128, 130 (8th Cir. 1985) ("We agree with Professor Nimmer that although the promotion of artistic and scientific creativity and the benefits flowing therefrom to the public are purposes of the Copyright Clause, those purposes do not limit Congress's power to legislate in the field of copyright.").
74. See Ladd v. Law & Tech. Press, 762 F.2d 809, 812 (9th Cir. 1985) (citing to Nimmer's contention that the first phrase of the Copyright Clause expands, rather than limits, congressional authority in the field of copyright).
75. See Eldred v. Reno, 239 F.3d 372, 378 (D.C. Cir. 2001) ("[I]n Schnapper . . . we rejected the argument 'that the introductory language of the Copyright Clause constitutes a limit on congressional power."'); Schnapper v. Foley, 667 F.2d 102, 111-12 (D.C. Cir. 1981), cert. denied, 455 U.S. 948 (1982) (citing to Nimmer and subsequently concluding that "we cannot accept appellants' argument that the introductory language of the Copyright Clause constitutes a limit on congressional power").
76. 383 U.S. 1, 5-8 (1966) ("Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose."); see also Great Atl. & Pac. Tea Co. v. Supermarket Equip. Corp., 340 U.S. 147, 154 (1950) (Douglas, J., concurring) ("Congress acts under the restraint imposed by the statement of purpose in Art. I, § 8.").
77. See Graham, 383 U.S. at 7-11.
78. See Mitchell Bros. v. Cinema Adult Theater, 604 F.2d 852, 860 (5th Cir. 1979); Figueroa v. United States, 66 Fed. Cl. 139, 140 (2005); Figueroa v. United States, 57 Fed. Cl. 488 (2003).
79. See James Monroe, Views of the President of the United States on the Subject of Internal Improvements (May 4, 1822), in 2 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS, 1789-1897, at 144, 163 (James D. Richardson ed., 1897) (observing that enumerated powers start with a general grant of power, and are followed by explanations or qualifications if needed). Later scholars that read the Clause in light of other enumerated powers disagreed over whether the Exclusive Rights Clause was intended as an explanation or a qualification of the Progress Clause. Compare the view of Walterscheid, infra note 71 (explanation), with the view of Solum, supra note 47 (qualification).
80. See, e.g., U.S. CONST. art. I, § 8, cl. 2 ("To borrow Money on the credit of the United States").
81. See, e.g., U.S. CONST. art. I, § 8, cl. 12 ("To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years").
82. See Solum, supra note 47, at 14-20 (reading the Clause in light of other enumerated powers and concluding that the Progress Clause is a grant of power and that the Exclusive Rights clause is a limitation); see also Jeffrey T. Renz, What Spending Clause? (Or the President's Paramour): An Examination of the Views of Hamilton, Madison, and Story on Article I, Section 8, Clause 1 of the United States Constitution, 33 J. MARSHALL L. REV. 81, 128 (1999) (suggesting that the Exclusive Rights Clause limits the power in the Progress Clause).
83. See Brief for Eagle Forum Education & Legal Defense Fund as Amicus Curiae Supporting Appellants and Supporting Reversal at 3 & n.2, Eldred v. Reno, 239 F.3d 372 (D.C. Cir. 2001) (No. 99-5430), available at http://cyber.law.harvard.edu/openlaw/eldredvreno/eagleforum-amicus.pdf [hereinafter Brief of Eagle Forum].
84. See RICHARD C. DE WOLF, AN OUTLINE OF COPYRIGHT LAW (1925). Among other things, De Wolf was the Acting Register of Copyrights from 1944 to 1945.
85. See Richard Crosby De Wolf, Acting Register, 1944-1945, http://www.copyright.gov/history/bios/dewolf.pdf (last visited Feb. 17, 2006).
86. See DE WOLF, supra note 65, at 15. De Wolf was not the first to suggest that the Clause should be read "disjunctively." See infra note 68.
87. DE WOLF, supra note 65, at 14-15 (arguing that such reading is mandated because the Clause exhibits a "balanced style of composition so much used in the days of the colonial worthies").
88. See Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 684 (1834) (Thompson, J., dissenting) ("This article is to be construed distributively, and must have been so understood; for when congress came to execute this power by legislation, the subjects are kept distinct, and very different provisions are made respecting them.").
89. See, e.g., L. RAY PATTERSON & STANLEY W. LINDBERG, THE NATURE OF COPYRIGHT: A LAW OF USERS' RIGHTS 48 (1991);
90. Kenneth J. Burchfiel, The Constitutional Intellectual Property Power: Progress of Useful Arts and the Legal Protection of Semiconductor Technology, 28 SANTA CLARA L. REV. 473, 501 (1988);
91. Karl B. Lutz, Patents and Science: A Clarification of the Patent Clause of the U.S. Constitution, 18 GEO. WASH. L. REV. 50, 51 (1949);
92. L. Ray Patterson, Understanding the Copyright Clause, 47 J. COPYRIGHT SOC'Y U.S.A. 365, 367 & n. 6 (2000);
93. Shira Perlmutter, Participation in the International Copyright System as a Means to Promote the Progress of Science and Useful Arts, 36 LOY. L.A. L. REV. 323, 323 n.2 (2002);
94. Giles S. Rich, Principles of Patentability, 28 GEO. WASH. L. REV. 393, 395 (1960).
95. To wit, this approach, if joined with the first approach, would mean that "to promote the progress of science" would be a non-binding preambular statement of purpose for the "copyright" power and that "to promote the progress of useful arts" would be a preamble for the "patent" power. Joined with the second approach, this fourth approach would mean that Congress's power to secure exclusive rights to authors for their writings is limited to the promotion of science and that Congress's power to secure exclusive rights to inventors for their discoveries is limited to the promotion of "useful arts." Joined with the third approach, this approach would mean that Congress's power to promote science can be exercised only by granting exclusive rights to authors for their writings and its power to promote the useful arts can be exercised only by granting exclusive rights to inventors for their discoveries.
96. See, e.g., Pollack, supra note 16, at 755 (suggesting that people at the end of the eighteenth century would read "progress" to mean geographic "spread"); Edward C. Walterscheid, Conforming the General Welfare Clause and the Intellectual Property Clause, 13 HARV. J.L. & TECH. 87, 123-25 (1999) (reading the Clause in light of other enumerated powers and concluding that the Progress Clause was intended as a grant of power and the Exclusive Rights Clause as an explanation). Additionally, scholars hold not only different historically-based views about the nature of the limitations within the Clause, but also about the way in which the limitations in the Clause can be circumvented by congressional action through other powers, such as the Commerce Clause. Compare, e.g., Heald & Sherry, supra note 16, at 1123, with Nachbar, supra note 16, at 276-77 (agreeing that "principles of constitutional weight" and "constitutional norms," respectively, may limit Congress's Article I powers, while finding, and failing to find, respectively, such standards within the Clause). This debate is beyond the scope of the present Article. It will only be observed that courts have generally enforced limitations in the Clause when congressional action through another Article I power would conflict with these limitations directly. See, e.g., U.S. v. Moghadam, 175 F.3d 1269, 1280 (11th Cir. 1999) (finding a bootleg provision constitutional under the Commerce Clause because it was not "fundamentally inconsistent" with the Clause's fixation requirement, which it violated); KISS Catalog v. Passport Int'l Prods., Inc., 350 F. Supp. 2d 823, 832-37 (C.D. Cal. 2004) (finding a civil anti-bootlegging provision unconstitutional because it was "fundamentally inconsistent" with the Clause's "limited times" limitation, even if it was permissible under other Congressional powers), rev'd, 405 F. Supp. 2d 1169, 1173 (C.D. Cal. 2005) (finding the provision constitutional under the Commerce Clause while reversing the finding that the provision was "fundamentally inconsistent" with the Copyright Clause); U.S. v. Martignon, 346 F. Supp. 2d 413, 428-29 (S.D.N.Y. 2004) (finding an anti-bootlegging provision unconstitutional because it was "fundamentally inconsistent" with the Clause's "limited times" limitation, even if it was permissible under other Congressional powers); U.S. v. Elcom Ltd., 203 F. Supp. 2d 1111, 1137-42 (N.D. Cal. 2002) (finding the DMCA constitutional under the Commerce Clause because it was not "irreconcilably inconsistent" with limitations in the Clause).
97. See, e.g., Holbrook, supra note 26, at 14 ("The courts have not decided conclusively, however, the extent to which the phrase 'promote the Progress' limits Congress's legislative powers.").
98. See supra notes 49-56 and accompanying text (reviewing the Nimmer treatise's assertion).
99. See, e.g., Coenen & Heald, supra note 47, at 110-11; Lessig, supra note 17, at 1062 ("The great evil in the Framers' mind, second only to the great evil of centralized, monarchical government, was the evil of state-sanctioned monopoly.").
100. See, e.g., Graham v. John Deere Co., 383 U.S. 1, 7 (1966) ("Jefferson, like other Americans, had an instinctive aversion to monopolies. It was a monopoly on tea that sparked the Revolution and Jefferson certainly did not favor an equivalent form of monopoly under the new government. His abhorrence of monopoly extended initially to patents as well."); Figueroa v. U.S., 66 Fed. Cl. 139, 148-49 (2005) (suggesting that the Framers wished to follow the English example of stopping the abuses of monopoly and patent grants).
101. See, e.g., Paul J. Heald, The Rhetoric of Biopiracy, 11 CARDOZO J. INT'L & COMP. L. 519, 525-26 (2003) ("By predicating protection on the promotion of 'Science,' the framers were evidently worried about granting to Congress the same rights that had been abused by the English Crown. With an important exception for new inventions, Parliament ended the era of 'odious' monopolies."); Ochoa & Rose, supra note 16, at 925 ("The stipulation that patent and copyright protection be granted . . . only '[t]o promote the Progress of Science and useful Arts,' appears to have been aimed at preventing the kinds of abuses that had prompted the Statute of Monopolies 150 years earlier. It is clear that many of the Framers were concerned with restraining monopolies of all kinds.");
102. Richard Posner, The Constitutionality of the Copyright Term Extension Act: Economics, Politics, Law, and Judicial Technique, 55 SUP. CT. REV. 143 (2003) (finding "powerful" the argument that "[t]he historic Anglo-American hostility to government grants of monopolies caused the framers of the Constitution to authorize the granting of copyrights . . . only for the purpose of promoting intellectual and cultural progress." (footnote omitted)).
103. See Schwartz & Treanor, supra note 16, at 2378 & n.271 ("[T]here is, for example, no particular reason to read into the Clause the view that the Founders were afraid that Congress would engage in the kind of giveaways in which Queen Elizabeth had once engaged . . . . [M]any of the Founders were much more accepting of monopolies than the British are said to have been.").
104. See Nachbar, supra note 16, at 330-49; see also supra note 19 and accompanying text.
105. See, e.g., infra notes 173-74 and accompanying text (citing a correspondence between Jefferson and Madison that suggests that Jefferson seemed to have abhorred all monopolies while Madison would make an exception in the case of intellectual property rights).
106. Other limitations include, for example, the grant to "authors" (a term that excludes those who use trademarks in commerce, see The Trade-Mark Cases, 100 U.S. 82, 93-94 (1879)) or the protection of "writings" (but not facts, see Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346-47 (1991)).
107. 383 U.S. 1 (1966).
108. See supra note 21 and accompanying text.
109. See infra text accompanying note 173.
110. See Edward C. Walterscheid, The Use and Abuse of History: The Supreme Court's Interpretation of Thomas Jefferson's Influence on the Patent Law, 39 IDEA 195, 224 (1999) ("[T]he Court's selective use of the Jeffersonian record, frequently out of context, as a form of advocacy, creates a mythology at odds with the contemporaneous record.").
111. Eldred v. Ashcroft, 537 U.S. 186, 246. This interpretation of Madison seems consistent with his opinions about monopolies. See infra note 135.
112. See Eldred, 537 U.S. at 202 n.8.
113. Rather, it is shown that Madison would support a more expansive view of Congress's intellectual property power (although quite limited in itself) than the rest of the Framers who added the Progress Clause. See discussion infra Part IV.
114. See Eldred v. Reno, 239 F.3d 372, 380-82 (D.C. Cir. 2001) (Sentelle, J., dissenting) (suggesting that because (1) the "first principle" of enumerated powers necessitates some limitations on government's power, and (2) United States v. Lopez, 514 U.S. 549, 552 (1995) suggests that limitations on Congress's power are inherent in the language of the power grant, the Progress Clause must be a limitation); Brief of Eagle Forum, supra note 64, at 2 (suggesting that the first principles - (1) giving constitutional language meaning and (2) that the enumeration of powers in the Constitution suggests that there are limitations to Congress's power - "lead to the conclusion that all of the language of the Copyright Clause in one way or another limits congressional authority").
115. See, e.g., Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991) ("Originality is a constitutional requirement."); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) ("the limited copyright duration [is] required by the Constitution"); Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884) (finding the term "authors" to limit copyright grants); The Trade-Mark Cases, 100 U.S. 82, 94 (1879) (finding the term "writings" to limit copyright grants).
116. See Nachbar, supra note 16, at 317 (highlighting the central role that "the norm favoring legislative over judicial policymaking" should play in intellectual property).
117. See, e.g., Figueroa v. United States, 57 Fed. Cl. 488, 498-500 (2003) (relying on the presumption that every clause and word should be given effect in concluding that the Progress Clause is a limitation); Edward C. Walterscheid, "Within the Limits of the Constitutional Grant": Constitutional Limitations on the Patent Power, 9 J. INTELL. PROP. L. 291, 326 (2002) (suggesting that reading the Progress Clause as a preamble renders it meaningless, which is "contrary to the well-established principle that, to the extent possible, legislative language must be read so as to give effect to all of its parts").
118. See, e.g., Eldred v. Ashcroft, 255 F.3d 849, 855 (D.C. Cir. 2001) (Sentelle, J., dissenting) ("This interpretation of Schnapper erases from Article I half of the Copyright Clause . . . ."); Coenen & Heald, supra note 47, at 116.
119. Note that the Constitution starts with a preamble, which is commonly accepted as such. Also, some argue that the introductory statement of purpose in the Second Amendment should be read as a non-binding preamble, but this matter is disputed. The case of the Second Amendment does not inform the inquiry here much because of substantive and textual differences between the two. See Coenen & Heald, supra note 47, at 106-07 n.30 (noting the difference between the Amendment that relates to rights of the people and the Clause that relates to the powers of the national legislature); Solum, supra note 47, at 21-22 (noting textual differences between the Amendment and the Clause); Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. REV. 793, 793 n.1 (1998) (noting both substantive and textual differences).
120. See Thomas B. Nachbar, Constructing Copyright's Mythology, 6 GREEN BAG 2D 37, 43 (2002) (pointing out "the danger inherent in relying on broad assertions about the essential features of copyright and its central place in the Framers' vision of government [by those who wish to strike down acts that fail to promote the progress of science and useful arts]"); Schwartz & Treanor, supra note 16, at 2376, 2378-79 (criticizing arguments that favor interpreting the Progress Clause as a limitation in that they rely on "evidence that is . . . outside of the Convention and ratifying debates," and that their "evidentiary support is very thin," and that "this weak evidence is advanced to support broad claims").
121. As will be clear below, this article does not assume that all the Framers shared the same intent. Quite the contrary: Part III, infra, reviews the Clause's framing process as a compromise between differently-minded Framers, and the "Framers' intent," as used in this Article, simply comes to denote a compromise about constitutional text that at least a majority of the Framers could agree to in the particular point in time when they were drafting the Constitution. It is thus possible that some Framers did not agree - in whole or in part - with the majority's intent, or that Framers that agreed to the same text hoped that it would be interpreted in different ways, or that in later years some Framers argued for a different interpretation of the text because of a bona fide change of view, because of a changed interest, because of the failings of human memory, etc. See also infra Part VI.A for additional qualifications of the present quest for the Framers' intent.
122. See 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 177 (Max Farrand ed., 1911) [hereinafter RECORDS].
123. Each of the delegates also proposed a congressional incorporation power and one relating to the seat of government. The coincidence of two delegates proposing on the same day, three months into the Convention, for the first time, six pairs of new legislative powers suggests that the two were coordinated. But see LYMAN RAY PATTERSON, COPYRIGHT in HISTORICAL PERSPECTIVE 193 (1968) ("[t]he proposals submitted by Madison and Pinckney" were "apparently arrived at independently");
124. L. Ray Patterson & Craig Joyce, Copyright in 1791: An Essay Concerning the Founders' View of the Copyright Power Granted to Congress in Article I, Section 8, Clause 8 of the U.S. Constitution, 52 EMORY L.J. 909, 938 (2003) (same).
125. See 1 BUREAU OF ROLLS & LIBRARY, U.S. DEP'T OF STATE, DOCUMENTARY HISTORY OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA, 1786-1870, at 130-31 (1894) (Convention's Journal for August 18, 1787); 3 id. at 554-55 (James Madison's Journal for Aug. 18, 1787). It was doubted whether Madison made a patent power proposal. Elsewhere, I show that he did.
126. See Dotan Oliar, The Immediate Origins of the Intellectual Property Clause (on file with author) (establishing that Madison and Pinckney's proposals were the immediate origins of the Clause by clarifying confusion surrounding the Convention's intellectual property record).
127. This committee had one member from each state. It had eleven rather than thirteen members because Rhode Island did not send delegates to the Convention and the New York delegation had left the Convention by this date. Its members were Gilman, King, Sherman, Brearly, Morris, Dickinson, Carrol, Madison, Williamson, Butler, and Baldwin. See 2 RECORDS, supra note 96, at 473 (Journal for Aug. 31, 1787).
128. See id.
129. See id. at 505 (Journal for Sept. 5, 1787).
130. See id. at 547 (Journal for Sept. 8, 1787).
131. See id. at 590, 595.
132. See id. at 655.
133. See, e.g., BEN-ATAR, supra note 16, at 136 ("The framers have left us little by way of explaining their reasons [for including the Clause in the Constitution]."); Michael D. Birnhack, The Idea of Progress in Copyright Law, 1 BUFF. INTELL. PROP. L.J. 3, 33 (2001) ("Historians of American copyright law do not know much about the making of the constitutional clause, and most of what we have is historical interpretation, or at times, speculation.");
134. Oren Bracha, The Commodification of Patents 1600-1836: How Patents Became Rights and Why We Should Care, 38 LOY. L.A. L. REV. 177, 216 (2004) (noting "the little we know about the legislative history of the clause");
135. Alan L. Durham, "Useful Arts" in the Information Age, 1999 BYU L. REV. 1419, 1429 (1999) ("There is little 'legislative history' to assist in interpreting the intellectual property clause of the Constitution.");
136. Jane Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 TUL. L. REV. 991, 999 (1990) ("[R]ecords from the Constitutional Convention concerning the copyright clause are extremely sparse . . . .");
137. Marci A. Hamilton, Copyright at the Supreme Court: A Jurisprudence of Deference, 47 J. COPYRIGHT SOC'Y U.S.A. 317, 320 (2000) ("[T]he history of the drafting of the Clause left little for the courts to employ . . . ."); Heald & Sherry, supra note 16, at 1148-49 (reviewing all that has been known about the Convention's intellectual property record, namely that Madison and Pinckney were "primary forces behind the addition of the Clause" and that the Clause was unanimously adopted without recorded debate); Patterson & Joyce, supra note 97, at 937-39 (quoting many of Madison and Pinckney's proposals and offering a very brief analysis thereof);
138. Malla Pollack, Dealing with Old Father William, or Moving from Constitutional Text to Constitutional Doctrine: Progress Clause Review of the Copyright Term Extension Act, 36 LOY. L.A. L. REV. 337, 343 (2002) ("[A]ny [interpretive] approach based on the drafting or ratification discussions stumbles on the thinness of the record . . . ."); Schwartz & Treanor, supra note 16, at 2375 (seeing Madison and Pinckney's patent and copyright proposals as the relevant part of the Convention's record pertaining to the Clause, and noting that these proposals were the sources of the Exclusive Rights Clause, but failing to note the role of Madison and Pinckney's education and encouragement proposals as sources of the Clause and noting that the Progress Clause originated first with the Committee of Eleven);
139. Edward C. Walterscheid, To Promote the Progress of Science and Useful Arts: The Background and Origin of the Intellectual Property Clause of the United States Constitution, 2 J. INTELL. PROP. L. 1, 26 (1994) ("[T]he question naturally arises as to how the Intellectual Property Clause came to be included in the Constitution. Little has been written on the point. The reason for the dearth of commentary undoubtedly is that so little is actually known about how its inclusion came about.");
140. Diane Leenheer Zimmerman, It's an Original! (?): In Pursuit of Copyright's Elusive Essence, 28 COLUM. J.L. & ARTS 187, 198 & n.73 (2005) ("[Little] specific or direct information is available about the thinking of the Framers.").
141. The Convention's debates were held in secret to enable the Framers to discuss openly and freely their different views of the Constitution, change their minds, and reach compromise. The record of the Convention was published only in 1819, more than thirty years after the Convention adjourned. A few Framers kept private records of the Convention, of which James Madison's record is the most complete. But even Madison's journal does not record exchanges surrounding the adoption of the Clause.
142. See 2 RECORDS, supra note 96, at 616 (Madison's Journal for Sept. 14, 1787).
143. Delegate Morris commented that such power is unnecessary because Congress can establish a university as a part of its general power at the seat of government. See id. Thus, it can be inferred that the suggested university power reached beyond that geographic limit or else it would be difficult to explain why the proposal was made. See also infra note 110 (supporting the conclusion that the university power proposed was meant to exceed the boundaries of the federal seat of government).
144. See, e.g., 1 JOURNAL OF THE HOUSE OF REPRESENTATIVES 135-36 (Washington, Gales & Seaton 1826) (address of President Washington) ("Nor am I less persuaded that you will agree with me in opinion, that there is nothing which can better deserve your patronage than the promotion of science and literature. . . . Whether this desirable object will be best promoted by affording aids to seminaries of learning already established; by the institution of a national university; or by any other expedients - will be well worthy of a place in the deliberations of the Legislature.").
145. See 3 RECORDS, supra note 96, at 362 (Roger Sherman, May 3,1790) ("Mr. Sherman said, that a proposition to vest Congress with power to establish a National University was made in the General Convention; but it was negatived. It was thought sufficient that this power should be exercised by the States in their separate capacity.").
146. See 2 ANNALS OF CONG. 1551 (1790) ("Mr. Stone inquired what part of the Constitution authorized Congress to take any steps [respecting President Washington's call to encourage science and literature]; for his part, he knew of none.").
147. See 2 JOURNAL OF THE HOUSE OF REPRESENTATIVES 609-10 (Washington, Gales & Seaton 1826) (recording Washington's address on Dec. 7, 1796).
148. See 6 ANNALS OF CONG. 1704 (1796); see also id. at 1711 (statement of Congressman Venable) (opposing the motion to establish a local seminary in D.C. because it was a national university in disguise at a time when a national university was widely opposed).
149. See 2 RECORDS, supra note 96, at 616 (Madison's Journal for Sept. 14, 1787) (introducing a proposal "seeking to establish an University, in which no preferences or distinctions should be allowed on account of religion"); id. at 620 (McHenry's Journal for Sept. 14, 1787) ("Moved To authorize Congress to establish an university to which and the honors and emoluments of which all persons may be admitted without any distinction of religion whatever.").
150. Pinckney's education power, and potentially Madison's education power, drew on the Massachusetts's Constitution of 1780 that anchored the status of Harvard University as a religious institution. See MASS. CONST. of 1780, ch. 5, § 1, art. 1; Oliar, supra note 98. Other state constitutions bundled their universities with religious studies. See PA. CONST. of Sept. 28, 1776, §§ 44-45; VT. CONST. of 1786, art. XXXVIII; VT. CONST. of 1777, §§ XL-XLI (Vermont was not represented in the Convention). The 1786 New York copyright statute shows the contemporaneous close connection between state, religion, promotion of knowledge and promotion of religious science as it provides for the apportionment of land by the Reformed Protestant Dutch Church for the establishment of what seems like a religious academy. See COPYRIGHT OFFICE, LIBRARY OF CONG., BULLETIN No. 3, COPYRIGHT ENACTMENTS 1783-1900, at 29 (1900) [hereinafter COPYRIGHT ENACTMENTS]. Religious knowledge was contemporaneously understood to be a form of useful knowledge.
151. See 4 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, at 269 (Worthington C. Ford ed., 1906) [hereinafter JOURNALS OF THE CONTINENTAL CONGRESS] (detailing an address from the Continental Congress to the Delaware Indians that purports to advance useful knowledge, including religion, among them).
152. See U.S. CONST. art. VI, cl. 3; id. amend. I.
153. See 2 RECORDS, supra note 96, at 342, 468 (Madison's Journal for Aug. 20 and Aug. 30, 1787) (proposals of Charles Pinckney).
154. See U.S. CONST. amend. X. Although the Tenth Amendment was not contemporaneous with the Constitution, the residual construction was probably assumed by the Framers, as this had been the rule under Article II of the Articles of Confederation.
155. See supra note 108 (Representative Sherman's view). Later debates in Congress show an additional major objection to the university power, namely that the university would be funded from the public treasury but would benefit primarily people from the states near it. See 6 ANNALS OF CONG. 1697-1711 (1796). It is unclear to what extent this concern played a role in the Convention.
156. See Office of Institutional Research, History, http://www.gwu.edu/ire/ history.htm (last visited Feb. 8, 2006) (noting that its charter provided that "persons of every religious denomination shall be capable of being elected Trustees; nor shall any person, either as President, Professor, Tutor or pupil, be refused admittance into said College, or denied any of the privileges, immunities, or advantages thereof, for or on account of his sentiments in matters of religion").
157. The "power at the seat of government" circle comes to represent the power conferred by Article I, Section 8, Clause 17 (granting Congress the power "[t]o exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States"), and the particular awareness of the Framers to this power in the context of the university power, pursuant to Delegate Morris's comment at the Convention, see supra note 108.
158. One may hypothesize that some Framers voted the university proposal down because they shared Hamilton's expansive view of Congress's spending power and thus thought that a university power would be superfluous. Based on available evidence, it seems unlikely that this was a widely-shared reason. The debates in the early Congresses show that the objections to establishing a university were prevalent and persistent, and that constitutional objections were also raised. As for superfluity, there is evidence suggesting that at least some objected to a university power because the federal government could establish one at the seat of government. Indeed, when Washington attempted unsuccessfully to establish a university at the end of his presidency, the proposed university was one at the seat of government. See supra notes 107-13. Hamilton's view of the spending power, at least regarding the promotion of industry, was not widely shared contemporaneously, as the rejection of his Report suggests. See infra notes 124, 140 and accompanying text.
159. See supra note 119 and accompanying text.
160. See Alexander Hamilton, The Report on the Subject of Manufactures (Dec. 5, 1791), in 10 THE PAPERS OF ALEXANDER HAMILTON 230, 308 (Harold C. Syrett et al. eds., 1966).
161. For an analysis of the Report, see generally Doron Ben-Atar, Alexander Hamilton's Alternative: Technology Piracy and the Report on Manufactures, 52 WM. & MARY Q. 389, 393-414 (1995).
162. 1 JOURNAL OF THE SENATE 103 (Washington, Gales & Seaton 1820) (recording Washington's address on Jan. 8, 1790).
163. The Report defined premiums as "honorary and lucrative" rewards, made "in a small number of cases," for "particular excellence" or "extraordinary exertion of skill." Alexander Hamilton, The Report on the Subject of Manufactures, supra note 124, at 304-05.
164. See 2 ANNALS OF CONG. 1033 (1791).
165. Madison's encouragements power seems, according to its wording, to be knowledge-encouraging. Pinckney's encouragements power seems to be industry-encouraging. But the terms in these proposals are somewhat ambiguous: "public institutions" in Pinckney's proposal could encourage knowledge (like the present day National Science Foundation) or industry (like the board mentioned in the Report). At that time the states would issue encouragements mainly to industry. See e.g., BRUCE W. BUGBEE, GENESIS OF AMERICAN PATENT AND COPYRIGHT LAW 92 (1967) (reviewing various Pennsylvanian encouragements: a £300 five-year interest-free loan to a steel manufacturer, a £1,000 grant to a cotton-textile making venture, and a £200 interest-free loan for working in the area of printing and bleaching calico). The Continental Congress resolved to give an encouragement of 30,000 acres of land to James Rumsey for his intended steam engine invention, if he could put it to practice within a year.
166. See 28 JOURNALS OF THE CONTINENTAL CONGRESS 349-50 & n.1 (1785);
167. Frank D. Prager, The Steamboat Pioneers Before the Founding Fathers, 37 J. PAT. OFF. SOC'Y 486, 499 (1955) (suggesting that Rumsey did not meet his deadline and thus did not get his bounty);
168. see also 24 JOURNALS OF THE CONTINENTAL CONGRESS 433-34 (1783) (denying James McMechen's petition for a land grant on the west side of the Ohio River in consideration for his publication of his upstream boat navigation invention).
169. It may seem that Madison and Pinckney's patent and copyright proposals were a subset of the powers included in Madison and Pinckney's encouragements powers. See WALTERSCHEID, supra note 16, at 117 ("[Madison's encouragements power] is much broader in scope than the proposals to provide for patents and copyrights, and incorporation of language closely analogous to it in the clause indicates that the Framers viewed the clause as providing much more than merely power to grant patents and copyrights."). In a footnote to the latter quote, Walterscheid notes: "The deletion of 'proper premiums & provisions' did nothing to change the broad import of this grant of power." Id. at 117 n.9. However, this reading of Madison and Pinckney's powers does not make a distinction between their means and ends and does not recognize the different economic means that each suggests to promote knowledge and industry.
170. See ROBERT COOTER & THOMAS ALLEN, LAW & ECONOMICS 46-47, 120-22 (4th ed. 2004) (reviewing the public goods problem and potential solutions to it in the context of information production);
171. STEVEN SHAVELL, FOUNDATIONS OF ECONOMIC ANALYSIS OF LAW 137-44, 161-65 (2004) (reviewing the inadequate incentive to create information in the absence of intellectual property rights, and discussing alternatives to the intellectual property system).
172. See WILLIAM W. FISHER III, PROMISES TO KEEP: TECHNOLOGY, LAW AND THE FUTURE OF ENTERTAINMENT 199-201 (2004) (providing a taxonomy of possible solutions to the public goods market failure in intellectual property).
173. For two notable proposals of this sort, see id. ch. 6; Steven Shavell & Tanguy Van Ypersele, Rewards Versus Intellectual Property Rights, 44 J.L. & ECON. 525, 534-35 (2001).
174. See, e.g., BUGBEE, supra note 128, at 89 (reviewing the Pennsylvania Assembly's encouragement of £100 for a machine to clean river beds); id. at 92 (reviewing Pennsylvania's £100 reward for introducing a cotton-carding machine). From his service on the Virginia legislature, Madison knew that exclusive rights and encouragements were alternative means to promote knowledge. See id. at 96 (noting that James Rumsey petitioned in 1784 the Virginia House of Delegates, of which Madison was then a member, for a patent or a premium for his steamboat invention).
175. See also Alexander Hamilton, Paper "A," reprinted in 10 THE PAPERS OF ALEXANDER HAMILTON 18, 19 n.52 (Harold C. Syrett et al. eds., 1966) (suggesting that governmental encouragements would be appropriate to remunerate introducers of items or ideas that "will not yield an immediate or adequate benefit" in the market).
176. James Madison, Monopolies. Perpetuities. Corporations. Ecclesiastical Endowments., in Elizabeth Reel, Madison's "Detached Memoranda," 3 WM. & MARY Q. 3D SER. 534, 551-52 (1946) ("In all cases of monopoly, not excepting those specified in favor of authors & inventors, it would be well to reserve to the State, a right to terminate the monopoly by paying a specified and reasonable sum [to the holder]. This would guard against the public discontents resulting from the exorbitant gains of individuals, and from the inconvenient restrictions combined with them.").
177. See, e.g., id. at 552 (noting that Virginia's steamboat patent to James Rumsey reserved a right in the State to terminate the patent by paying Rumsey ten thousand dollars); see also BUGBEE, supra note 128, at 97 (Rumsey's patent in Pennsylvania included a £8,000 abolition privilege); id. at 100 (Delaware's flour-mill machinery patents to Oliver Evans were subject to a £1,000 abolition privilege).
178. Patents of importation were limited-time exclusive rights conferred upon the first to import an art not previously known or used domestically. These patents were an accepted policy in principal manufacturing European nations in the late eighteenth century. See Edward C. Walterscheid, Patents and Manufacturing in the Early Republic, 80 J. PAT. & TRADEMARK OFF. SOC'Y 855, 857, 865 (1998).
179. See text accompanying supra note 125.
180. See Walterschied, supra note 137, at 871-75.
181. See Alexander Hamilton, Report on the Subject of Manufactures, supra note 124, at 308 ("[T]here is cause to regret, that the competency of the authority of the National Government to the good, which might be done, is not without a question.");
182. Alexander Hamilton, First Draft of the Report on Manufactures, in 10 THE PAPERS OF ALEXANDER HAMILTON, supra note 134, at 23, 37 (doubting whether the grant of patents of importation is "within the compass of the powers of the government").
183. See Douglas A. Irwin, The Aftermath of Hamilton's "Report on Manufactures" 7-24 (Nat'l Bureau of Econ. Research, Working Paper No. 9943, 2003). Irwin reviews and agrees with the literature claiming that Congress refused to adopt Hamilton's recommendations for the encouragement of manufactures. Irwin notes, however, that Congress implemented in May 1792 many of the Report's recommendations regarding duties (as different from bounties, rewards, premiums, and public institutions) as a means to finance the war on the western frontier. Promulgating taxes and duties, however, as Hamilton notes in the Report, unquestionably lies within Congress's constitutional ambit.
184. See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57 (1883) (according great weight to the construction placed by the Framers upon the Constitution in the first Congress).
185. See 3 ANNALS OF CONG. 393-94 (1793) (statement of Mr. Page) ("The framers of the Constitution guarded so much against a possibility of such partial preferences as might be given, if Congress had the right to grant them, that, even to encourage learning and useful arts, the granting of patents is the extent of their power. . . . [T]he wise framers of our Constitution saw that, if Congress had the power of exerting what has been called a royal munificence for these purposes, Congress might, like many royal benefactors, misplace their munificence; might elevate sycophants, and be inattentive to men unfriendly to the views of Government; might reward the ingenuity of the citizens of one State, and neglect a much greater genius of another.");
186. H.R. Doc. No. 74, reprinted in 1 AMERICAN STATE PAPERS: MISCELLANEOUS 140 (Walter Lowrie & Walter S. Franklin eds., 1834) (reporting the committee's view "[t]hat it is their opinion that application to Congress for pecuniary encouragement of important discoveries, or of useful arts, cannot be complied with, as the constitution of the United States appears to have limited the powers of Congress to granting patents only"); see also infra note 156 and accompanying text.
187. See Letter from James Madison to Tench Coxe (Mar. 28, 1790), in 13 THE PAPERS OF JAMES MADISON 128 (Charles F. Hobson et al. eds., 1981).
188. Id.; see also supra note 143.
189. Letter from Tench Coxe to James Madison (Mar. 21, 1790), in 13 THE PAPERS OF JAMES MADISON, supra note 144, at 111-14 (suggesting that the Exclusive Rights Clause prevents the grant of patents of importation).
190. For the current import of this original meaning, see discussion infra Part VI. A.
191. See James Madison, First Inaugural Address (Mar. 4, 1809), in 8 THE WRITINGS OF JAMES MADISON 47, 49 (Gaillard Hunt ed., 1900-1910) (noting that as President he shall strive "to promote by authorized means improvements friendly to agriculture, to manufactures, and to external as well as internal commerce; to favor in like manner the advancement of science and the diffusion of information as the best aliment to true liberty; to carry on the benevolent plans which have been so meritoriously applied to the conversion of our aboriginal neighbors from the degradation and wretchedness of savage life to a participation of the improvements of which the human mind and manners are susceptible in a civilized state");
192. see also Karl B. Lutz, Are the Courts Carrying Out Constitutional Public Policy on Patents?, 34 J. PAT. OFF. SOC'Y 766, 774 (1952) (noting that one of the "limitations contained in the patent clause [is that] . . . [t]he progress of useful arts is to be promoted by the free-enterprise device of a patent, not by the grant of premiums or rewards from the public treasury").
193. See Ochoa & Rose, supra note 16, at 924-28; see also Walterscheid, supra note 16, at 37-38. Earlier, the Article mentioned scholarly views that doubted that the anti-monopolistic sentiment was intense and shared by all Framers. It is enough, however, that this sentiment was shared by a significant number of Framers, which seems to have been the case, to raise the possibility that this group blocked the use of a federal encouragements power in the legislative process.
194. 383 U.S. 1, 7 (1966) ("Jefferson, like other Americans, had an instinctive aversion to monopolies. It was a monopoly on tea that sparked the Revolution and Jefferson certainly did not favor an equivalent form of monopoly under the new government.").
195. See id. at 5.
196. Massachusetts had an anti-monopoly provision in its "Body of Liberties" of 1641. See BUGBEE, supra note 128, at 61. Connecticut imitated Massachusetts's provision with a similar statute in 1672. See id. at 69. Maryland and North Carolina enacted a similar measure in their respective Bills of Rights. See MD. DECLARATION OF RIGHTS, art. XXXIX (1776) ("That monopolies are odious, contrary to the spirit of a free government, and the principles of commerce; and ought not to be suffered."); N.C. DECLARATION OF RIGHTS, art. XXIII (1776) ("That perpetuities and monopolies are contrary to the genius of a free State, and ought not to be allowed.").
197. See, e.g., 2 RECORDS, supra note 96, at 616 (Madison's Journal for Sep. 14, 1787) (opinion of King) (insinuating that there was popular objection to "mercantile monopolies"); id. at 632-33 (Madison's Journal for Sep. 15, 1787) (opinion of Gerry); id. at 640 (Mason expresses his objection to congressional grant of monopolies in trade and commerce, as a part of his objections to the draft Constitution of September 12, 1787); id. at 635 (King's journal for September 15, 1787) (noting Gerry's objection that the congressional power over commerce will enable it to create corporations and monopolies).
198. On August 18, Madison proposed a power "[t]o grant charters of incorporation in cases where the public good may require them, and the authority of a single State may be incompetent." See id. at 325. On that day, Pinckney proposed a power "[t]o grant charters for incorporation." See id. Madison reintroduced on September 14, 1787, a power similar to his August 18 incorporation proposal, which was similarly rejected. See id. at 615-16 (Madison's Journal for Sep. 14, 1787). Some objected to an incorporation power because it could be used to establish monopolies. Id. at 616 (opinions of King, Mason). Others may have feared that it would be exercised to charter incorporations whose benefits would accrue to some states while its costs would fall on all states. See infra note 156.
199. In ratifying the Constitution, Massachusetts, New Hampshire, New York, North Carolina, and Rhode Island suggested that it be amended as not to allow federal charters conferring "exclusive advantages of commerce." See 2 BUREAU OF ROLLS & LIBRARY, U.S. DEP'T OF STATE, supra note 98, at 95, 142, 198, 274, 319. New York specifically suggested that "Congress do not grant monopolies." See id. at 98; see also Ochoa & Rose, supra note 16, at 927-28 (reviewing the anti-monopolistic sentiment during the ratification debates).
200. See supra note 143. There is reason to believe that at least some Framers did not want Congress to pass regulations whose effect would be to spend federal monies in a way that would benefit some states at the expense of others. Thus Franklin proposed in the Convention to empower Congress to cut canals. This proposal, narrower than a general incorporation power, was rejected; one of the arguments being that "[t]he expence . . . will fall on the U. States, and the benefit accrue to the places where the canals may be cut." See 2 RECORDS, supra note 96, at 615 (Madison's Journal for Sep. 14, 1787) (opinion of Sherman).
201. Hamilton, supra note 124, at 232.
202. Id.; see also id. at 266-67.
203. Id. at 234-34; see also id. at 286.
204. See Walterscheid, supra note 16, at 34-35, 56; Edward C. Walterscheid, To Promote the Progress of Science and Useful Arts: The Anatomy of a Congressional Power, 43 IDEA 1, 15-16 (2002).
205. For Madison and Coxe's exchange, see supra note 144 and accompanying text.
206. See U.S. CONST. art. I, § 8, cls. 1, 8.
207. Note that the analysis relating to Figure 2 is simplified. See paragraph accompanying infra note 191 (highlighting the difference between the "promote" language used in Pinckney's education power and Figure 2, and the "promote progress" language used in the Clause).
208. See, e.g., Statute of Monopolies, 21 Jac. I, ch. 3 (1624) (Eng.) (prohibiting all royal grants of monopoly but excepting patents of invention of up to fourteen years and printing patents); James Madison, supra note 135, at 551 (viewing patents and copyrights as the only two monopolies that the Constitution has allowed because of their societal benefit); Letter from James Kent to Nathaniel Lawrence, in 14 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 75, 76 (Merrill Jensen ed., 1976) ("I have just been reading Smith on the Wealth of Nations & he has taught me to look with an unfavorable eye on monopolies - But a monopoly of the mental kind I take to be laudable & an exception to the Rule."); infra text accompanying note 174 (noting James Madison's viewing of intellectual property rights as exceptional monopolies "too valuable to be wholly renounced").
209. See, e.g., 5 ST. GEORGE TUCKER, BLACKSTONE'S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND OF THE COMMONWEALTH OF VIRGINIA *159 (1803);
210. see also EDWARD COKE, THE THIRD PART OF THE INSTITUTES OF THE LAWS OF ENGLAND 181 (1660).
211. Cf. ROBERT NOZICK, ANARCHY, STATE AND UTOPIA 181-82 (1974) (suggesting that patent grants do not violate the Lockean sufficiency proviso if they regard inventions that would not otherwise exist);
212. William Fisher, Theories of Intellectual Property, in NEW ESSAYS IN THE LEGAL AND POLITICAL THEORY OF PROPERTY 168, 170-71 (Stephen R. Munzer ed., 2001) (analyzing Nozick's argument).
213. See BUGBEE, supra note 128, at 65-66, 107.
214. See PATTERSON, supra note 97, at 933, 936.
215. See BUGBEE, supra note 128, at 93. These acts were influenced by South Carolina's generic patent provision. See id. at 93-95.
216. See Copyright Acts of Connecticut (Jan. 1783), Georgia (Feb. 3, 1786), New York (Apr. 29, 1786), North Carolina (Nov. 19, 1785), and South Carolina (Mar. 26, 1784), reprinted in COPYRIGHT ENACTMENTS, supra note 115, at 9-27.
217. See, e.g., W. KIP VISCUSI ET AL., ECONOMICS OF REGULATION AND ANTITRUST 298-99 (3d ed. 2000).
218. The Supreme Court noted that although he was not a delegate to the Convention because he was the minister to France at that time, Jefferson's views are relevant to the interpretation of the Clause because of his historic role and involvement in administering the early patent system. See Graham v. John Deere Co., 383 U.S. 1, 7-8 (1966). But cf. Walterscheid, supra note 84, at 224 (suggesting that the Court overstated Jefferson's contribution to the American patent system).
219. Letter from Thomas Jefferson to James Madison (July 31, 1788), in 1 THE FOUNDERS' CONSTITUTION 476 (Philip B. Kurland & Ralph Lerner eds., 1987).
220. Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 5 THE WRITINGS OF JAMES MADISON, supra note 148, at 269, 274-75.
221. Madison disliked monopolies. As the text demonstrates, his disagreement with Jefferson was about the appropriateness of making an exception in the case of patents and copyrights. For more on Madison's view, see infra note 199.
222. See supra note 98 and accompanying table.
223. Madison's encouragements power limits premiums and provisions to "proper" ones. The Exclusive Rights Clause qualifies exclusive rights to "limited times." Both limitations are not very strict, since "proper" is subject to a standard of reasonableness and "limited times" may be understood to include very long, albeit limited, durations.
224. Goldstein v. California, 412 U.S. 546, 555 (1973), superseded by statute, Copyright Act of 1978, 17 U.S.C. § 301 (2000), as recognized in Roth v. Pritikin, 710 F.2d 934, 938 (2d Cir. 1983); see also Bauer & Cie v. O'Donnell, 229 U.S. 1, 10 (1913) (supporting the use of "encourage" as a synonym); Mitchell v. Tilghman, 86 U.S. (19 Wall.) 287, 418 (1873) (implying the interpretation of "encourage" and "stimulate" as synonyms), overruled in pan by Tilgham v. Proctor 102 U.S. 707, 708 (1881).
225. See Copyright Act of New Hampshire (Nov. 7, 1783), reprinted in COPYRIGHT ENACTMENTS, supra note 115, at 16.
226. See also supra note 148 (in his first inaugural address, Madison paraphrased the Progress Clause as "to promote . . . improvements friendly to [useful arts]; to [promote] the advancement of science", which further shows the close similarity between progress, as used in the Clause, and improvement and advancement). But cf. Pollack, supra note 16, at 755 (suggesting that "progress" under the Clause means "spread" rather than advancement and improvement). Pollack's theory relies on the assumption that the wording of the Progress Clause did not follow from any of the suggestions made at the Convention. Id. at 781. It was shown, however, that the Progress Clause followed the wording and structure of Pinckney's education power and Madison and Pinckney's encouragements powers. She also claims that the Progress Clause "does not quote any ancestral document." Id. However, in a related work I show that Madison and Pinckney's proposals built, among other things, on state enactments and especially copyright statutes. See Oliar, supra note 98. Madison likely perceived of "diffusion of information" as compatible with "progress". See supra note 148 (quoting Madison's First Inaugural Address). Although "progress" contains "diffusion of information" as one of its moments, it is not reducible to it.
227. See Copyright Acts of Connecticut (Jan. 1783), Georgia (Feb. 3, 1786), and New York (Apr. 29, 1786), reprinted in COPYRIGHT ENACTMENTS, supra note 115, at 9-29.
228. See Copyright Act of New Jersey (May 27, 1783), reprinted in COPYRIGHT ENACTMENTS, supra note 115, at 14.
229. See 1 RECORDS 605 (Madison's Journal for July 13, 1787) (documenting James Wilson's view that the most noble object of government is not securing property but rather the cultivation and improvement of the human mind).
230. See supra note 148 (in his first inaugural address, Madison tied together the promotion of progress in science and useful arts and "true liberty" and "improvements of which the human mind and manners are susceptible in a civilized state").
231. See Solum, supra note 47, at 47; see also PATTERSON & LINDBERG, supra note 69, at 48 ("[T]he word science retains its eighteenth-century meaning of 'knowledge or learning.'"); Pollack, supra note 105, at 376 ("'Science' means 'knowledge' in an anachronistically broad sense."); Walterscheid, supra note 16, at 51 ("In the latter part of the eighteenth century 'science' was synonymous with 'knowledge' and 'learning.'").
232. See Solum, supra note 47, at 51 ("There is a general agreement that science was usually understood in a broader sense, so as to include knowledge, especially systematic or grounded knowledge of enduring value.").
233. Early decisions did not consider immoral works and adult materials as copyrightable, arguing that they failed to promote science and useful arts. This trend stopped after Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852, 859 (5th Cir. 1979). See generally 1 NIMMER, supra note 49, at § 1.03[B] (describing limitations imposed by the introductory phrase). For pre-twentieth century texts and decisions manifesting a requirement of material contribution to the body of human knowledge for copyrightability, see Zimmerman, supra note 105, at 199-200, and references therein.
234. The Copyright Act of 1790, ch. 15, 1 Stat. 124 (1790), listed maps as copyrightable subject matter, although to the extent that they are factual works they would not be protected today. Back then, however, the production of maps was seen as a useful endeavor in need of encouragement.
235. But see Walterscheid, supra note 26, at 376 (suggesting that discoveries and "useful arts" are synonymous).
236. But see id. at 341 ("The terms 'science' and 'useful arts' do not appear in any of the proposals submitted by Madison and Pinckney.").
237. The emphasis on advancement as it exists textually in the Clause ("promote the progress") is anticipated by Madison's encouragements power ("encourage advancements") and by Madison's first inaugural speech ("promote [] improvements", "[promote] advancement"). See supra note 148. This seems to justify the following statement by the Supreme Court: "Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which by constitutional command must 'promote the Progress of . . . useful Arts.' This is the standard expressed in the Constitution and it may not be ignored." Graham v. John Deere Co., 383 U.S. 1, 6 (1966) (first two emphases added).
238. See supra notes 49-56 and accompanying text.
239. See also supra note 24.
240. See, e.g., Howard B. Abrams, The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright, 29 WAYNE L. REV. 1119, 1174-75 (1983) ("Very little is known of the drafters intentions regarding the Copyright-Patent Clause beyond what is apparent on its face."); Walterscheid, supra note 60, at 12 ("A cogent caution always to be borne in mind is that almost nothing is known of the intent of the Framers in including the [Intellectual Property] Clause beyond that which is apparent on its face.").
241. That much is learned from the Framers' rejection of the education and encouragements proposals in the Convention (even in a limited form) and from the persistent refusals later in Congress to provide for education and encouragements, as reviewed in supra Part III.
242. By August 18, 1787, when Madison and Pinckney made their proposals, the Convention had already gone through three months of intense debate. It is unlikely that Madison and Pinckney had no general idea of potential objections to proposals they were making, especially that late into the Convention, and especially regarding powers to which at least a majority of the Framers objected.
243. Moreover, the ends in the rejected proposals seem to mollify contemporaneous concerns about objectionable exercise of these powers by channeling such exercise to non-objectionable ends. For example, Pinckney proposed that seminaries were to be established to promote literature and the arts and sciences, but not religion. See discussion supra notes 114-17.
244. See also discussion infra accompanying Table 4 (providing support to reading the Progress Clause as a limitation through a comparison of the different ways in which Madison and Pinckney, on the one hand, and the rest of the Framers, on the other, treated the various proposals for congressional power, conducted in light of the Framers' views about Congress's proper scope of power).
245. In light of the conclusion that the Framers added the Progress Clause in order to mollify a concern about Congressional abuse of power, a major and recurring contemporaneous concern that comes up in the evidence available to us today is the distaste for monopolies. Perhaps the one most expansive reflection on the Clause available to us is from James Madison, supra note 135, at 551-52: Monopolies tho' in certain cases useful ought to be granted with caution, and guarded with strictness agst abuse. The Constitution of the U.S. has limited them to two cases, the authors of Books and of useful inventions . . . . There can be no just objection to a temporary monopoly in these cases: but it ought to be temporary, because under that limitation sufficient recompence and encouragement may be given. . . . . . . [Monopoly grants for useful undertakings] can be justified in very peculiar cases only, if at all: the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself, in its original operation, may produce more evil than good. In all cases of monopoly, not excepting those specified in favor of authors & inventors, it would be well to reserve to the State, a right to terminate the monopoly by paying a specified and reasonable sum [to the holder.] This would guard against the public discontents resulting from the exorbitant gains of individuals, and from the inconvenient restrictions combined with them. . . . In this section, Madison categorizes patents and copyrights as monopolies, mentions the fear that they can be abused, and mentions specifically their negative features, namely high prices and restrictions on free trade. As noted, however, the argument here is different from previous ones in that it does not depend on the assumption that the contemporaneous distaste for monopolies was universal and intense and does not rely on expressions of any one of the Framers as representative of the group. Rather, the findings of this Article as to the limiting force of the Progress Clause are based on direct evidence from the Framing Convention, and reconcilable with evidence suggesting that the distaste for monopolies was simply substantial. Different from the abhorrence argument, the finding that the Progress Clause was intended as a limitation is reconcilable also with the possibility that a majority of the Framers wished the Progress Clause to be a limitation, but for different reasons. One such reason, discussed in the next paragraphs, has to do with the different views among the Framers as to the appropriate scope of federal power. Another related reason may be different assessments aomong the Framers as to the susceptibility of an intellectual property power to interset group pressures. See infra note 203. Most importantly this Article is able to demonstrate the limiting intent behind the Progress Clause specifically whereas the argument from monopolies could not. In the passage quoted above, for example, the time limitation is emphasized but the Progress Clause is not mentioned.
246. This paragraph relies on CATHERINE DRINKER BOWEN, MIRACLE AT PHILADELPHIA 3-15 (1966)
247. and CLINTON ROSSITER, 1787: THE GRAND CONVENTION 41-57 (1966).
248. This was one of the power struggles in the Convention. The Convention opened with the presentation of the Virginia Plan on May 29, 1787. This Plan, largely written by James Madison and supported by the Virginia delegates, would vest in the national legislature plenary power "to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation." See DOCUMENTS ILLUSTRATIVE OF THE FORMATION OF THE UNION OF THE AMERICAN STATES 954, § 6 (Charles C. Tansill ed., 1927) (statement of Edmund Randolph presenting the Virginia Plan); see also id. at 979, § 1 (Alexander Hamilton's Plan, June 18, 1787) (suggesting, similar to the Virginia Plan, to vest in the federal legislature plenary "power to pass all laws whatsoever" subject to an executive veto). Two weeks after the Virginia Plan was presented, on June 15 and in response, the small states countered with the New Jersey Plan which would keep the confederate nature of the union, only with a slight invigoration of the central government, whose powers would be limited and enumerated. See id. at 967, §§ 1-2 (statement of William Patterson presenting the New Jersey Plan). The conflict between supporters of the two plans was substantial, and almost insurmountable. The strife was solved by the Connecticut Compromise (AKA the Great Compromise), adopted on July 16, which struck middle ground between the two plans and enabled the convention to continue. See ROSSITER, supra note 200, at 191 ("the Great Compromise was a fifty-fifty accommodation between the confederate principles of the Articles of Confederation and the nationalist principles of the Virginia Plan."); id. at 192. Although the Great Compromise solved primarily the conflict between small and large states as to the manner of representation, it also struck the important compromise that interests us here about the balance of state vs. central power. The final text of the Constitution embodies the compromise between nationalists and state-righters by enumerating Congress's powers, but the list is more expansive than under the New Jersey Plan.
249. See ROSSITER, supra note 200, at 53. Madison authored many of The Federalist Papers that called for the ratification of the Constitution. He also authored a pamphlet just prior to the convention in which he detailed the vices of the Confederation and the need for a stronger central government. See James Madison, Vices of the Political System of the United States (Apr. 1787), in THE PAPERS OF JAMES MADISON 345 [hereinafter Madison, Vices]. Pinckney wished to strengthen the central government too. See id. at 132 (noting that Pinckney "was a relentless advocate of steps to strengthen the central government, whether by amending the Articles of Confederation to grant additional powers to Congress or by invoking a 'grand convention' to draft an entirely new charter"). In 1786, Pinckney advocated actively in the Continental Congress that it be given greater powers.
250. See Andrew C. McLaughlin, Sketch of Pinckney's Plan for a Constitution, 1787, 9 AM. HIST. REV. 735, 738-39 (1904).
251. When I write that Madison was a nationalist, I mean to describe the position he took at the time of the Convention. Although Madison changed his views over time, "nearly all authorities agree" that at the time of the Convention, Madison advocated a strong central government. See LANCE BANNING, THE SACRED FIRE OF LIBERTY: JAMES MADISON AND THE FOUNDING OF THE FEDERAL REPUBLIC 4 (1995). Particularly important to my characterization of Madison as a nationalist are his views about interest groups. He was bothered by the fact that the states passed economic legislation that sacrificed the public good for the immediate interests of the majority of voters. Madison believed that the national legislature would include many interest groups that would balance each other, so that no policy would pass unless it was really in the public good. Thus, to Madison, the best protection against public choice pressures was to vest the power in a large body with diverse interest, like Congress. See id. at 1-10, 74-79. Madison expressed this view explicitly regarding intellectual property in his letter to Jefferson. Madison believed that Congress would not grant intellectual property rights unless it would be in the public good. See text accompanying supra note 174. This may explain why Madison was more at ease than others to vest in Congress a plenary power to hand out patents and copyrights, as he was less concerned than others that Congress would issue these as a result of interest group pressures.
252. Their patent and copyright proposals were certainly qualified in time, but that has become a standard condition of all patent and copyright grants in the states. The time limitation was a major thing that made intellectual property rights exceptions to monopolies. Their proposals, however, were not qualified by ends. They probably believed that the other delegates would not object to the plenary powers as these powers were previously exercised by the states and were suggested to be moved to the federal government for uniformity and efficiency reasons. See Madison, Vices, supra note 202;
253. THE FEDERALIST No. 43 (James Madison); BUGBEE, supra note 128, at 84-103 (reviewing parallel patent applications and grants in the states). It seems, however, that they underestimated the objection that a majority of the Framers had towards such formulation.
254. The Framers as a group may have been more skeptical than Madison about Congress's ability to resist interest group pressures. See supra note 203.
255. This reasoning raises a question about the intended constitutional division of power between federal and state governments regarding intellectual property. Although the Framers saw the need to pass power from the states to the federal government over intellectual property for uniformity of treatment and efficiency of regulation (as expressed in THE FEDERALIST No. 43, at 239 (James Madison) (E.H. Scott ed., 1898)
256. and in Madison, Vices, supra note 202, at 350), the limitation of the federal government's power in this regard may suggest that the Framers wished the states to retain some concurrent intellectual property power. The inference about the retention of state legislative intellectual property power (either for grants that do not "promote [] progress of science and useful arts" or for grants whose validity would only be local rather than national) finds support in a long history of such grants. For a few early examples and discussion of this point, see BUGBEE, supra note 128, at 90-103 (reviewing various state patents issued between 1789 and 1791).
257. For current and recent examples, see, for example, MERGES ET AL., INTELLECTUAL PROPERTY IN THE NEW TECHNOLOGICAL AGE 818-19 (3d ed. 2003) (reviewing state and federal enactments for the protection of authors' moral rights); id. at 372 (reviewing the pre-1972 protection of sound recordings through state statutes).
258. The values suggested in the "Madison" and "Pinckney" columns in the table are inferred from the presence or absence of "ends" in the two Framers' proposals for Congressional powers. The next column takes the greater value of the two Framers regarding that power. The last column notes what the Convention did with the relevant proposal for congressional power. The "The Convention" column states "high" regarding the education and encouragements powers because the Convention rejected them and "intermediate" vis-à-vis the patents and copyrights powers because the Convention would vest these powers in Congress only if limited by ends.
259. Language granting a power serves to limit it at the same time. Cf. United States v. Lopez, 514 U.S. 549, 553 (1995) ("[Limitations on the commerce power are inherent in the very language of the Commerce Clause.").
260. The Figure represents only the structural relation between the parts of the Clause; it is not suggestive of their relative sizes.
261. Note that the model graphically demonstrates Madison's contemporaneous formulation of the Clause in The Federalist No. 43 that "[t]he public good fully coincides in [intellectual property] with the claims of individuals." Madison expresses the intent to confer upon Congress the middle area in Figure 4, above, since only there does the public good fully coincide with the private interests of those who are granted intellectual property rights.
262. Formally, intersection of two sets is commutative. Formally: a ∩ b = b ∩ a.
263. Compare Graham v. John Deere Co., 383 U.S. 1, 5-6 (1966) (viewing the Progress Clause to be a limitation, which leads the Court to suggest that intellectual property enactments must entail social benefit gained from innovation, and that such enactments cannot constitutionally withdraw materials from the public domain or restrict access to materials previously available), with Eldred v. Ashcroft, 537 U.S. 186, 192-222 (2003) (viewing the Progress Clause as a non-binding preamble, which leads the Court not to spell out what limitations on power it entails).
264. Could the Framers have empowered Congress "to secure for limited times to authors and inventors the exclusive rights to their respective writings and discoveries for the promotion of progress of science and useful arts," and how would this change the interpretation of the Clause, if at all? This would generally follow the means/ends structure of Pinckney's education and encouragements powers (rather than Madison's encouragements power) and would retain figure 4′s structure of defining a power through the intersection of ends and means. However, this language would not have conveyed the Framers' negative intent towards the use of alternative means (university, encouragements). Also, this language would seem to convey a lesser sense of progress as a limitation-it would situate the Exclusive Rights Clause as the clear grant of power and would at least make it possible to read the progress language as a non-binding explanation. See supra note 60. Lastly, and perhaps most importantly, it would emphasize the primacy of the power to grant intellectual property rights, whereas the current text of the Clause, in which the "promote [] progress" language is situated textually - when compared to the other enumerated powers - as the grant of power, emphasizes the primacy of progress, as ends, over the means chosen to achieve it.
265. See supra note 27.
266. See discussion supra Part I.A (noting the particular attention paid by courts and commentators to text and history in interpreting the Clause).
267. Elsewhere, I suggested that the effects of an intellectual property enactment are relevant to assessing its constitutionality. See Avishalom Tor & Dotan Oliar, Incentives to Create Under a 'Lifetime-Plus-Years' Copyright Duration: Lessons from a Behavioral Economic Analysis for Eldred v. Ashcroft, 36 LOY. L.A. L. REV. 437 (2002) (suggesting that CTEA provides individuals with negligible additional incentive to create based on a behavioral analysis of copyright's term structure).
268. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring) (suggesting that the records of the founding era are "almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh."); William J. Brennan, Jr., Address to the Text and Teaching Symposium, Georgetown University (Oct. 12, 1985), in THE GREAT DEBATE: INTERPRETING OUR WRITTEN CONSTITUTION 11, 14 (The Federalist Soc'y ed., 1986) (suggesting that the search for the Frarners' intent "is little more than arrogance cloaked as humility").
269. Jefferson did not attend the Convention. However, from the fact that Madison's initial proposals were not adopted as suggested, we may assume that the Framers that opposed adopting Madison's initial proposals at least shared some of Jefferson's sentiments.
270. See supra text accompanying notes 149-161.
271. See generally Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution's Secret Drafting History, 91 GEO. L.J. 1113, 1115-18 (2003).
272. See generally supra Part III. For example, the original meaning of "progress" was derived based on contemporaneous state copyright statutes that used the term; the original negative implication of the Exclusive Rights Clause for the propriety of the use of university and rewards was derived based, among other things, on views publicly expressed in Congress.
273. See Oliar, supra note 98.
274. See supra note 110 (quoting a view expressed in the first Congress that the Convention rejected a proposal to establish a national university); supra note 143 (arguing that debates in the second Congress imply that the Convention rejected a congressional power to grant encouragements); supra note 144 (quoting Madison's letter to Tench Coxe recounting that the Convention discussed and rejected the grant of encouragements and chose to provide only for patents). In addition, shortly after the Convention adjourned, Pinckney published a pamphlet in both New York and South Carolina saying that he had suggested intellectual property and university powers in the Convention. See Oliar, supra note 98. The legislative history of the Patent Act of 1790 similarly suggests that the public thought that patents of importation, a form of encouragements, were unconstitutional because the Convention rejected them. See supra Part III.A.1.b. Thus, it was within the public's knowledge that congressional powers to establish universities and grant encouragements were proposed and rejected in the Convention and, as is clear from the text of the Clause, that patents and copyrights were proposed and adopted.
275. See Kesavan & Paulsen, supra note 220, at 1113, 1118-21, 1197, 1204-05, 1209-12 (2003) (suggesting that the Convention's debates are admissible evidence of the first degree in searching for the Constitution's original meaning, clearly useful when the text of the Constitution is ambiguous, and that the debates are particularly useful for tracing "the formal evolution of a clause of the Constitution through the Philadelphia Convention of 1787" and to "use amendments and proposals rejected by the Philadelphia Convention to infer the meaning of a Clause").
276. For one characterization of the debate, see, for example, Raymond S. R. Ku, The Creative Destruction of Copyright: Napster and the New Economics of Digital Technology, 69 U. CHI. L. REV. 263, 279-87 (2002).
277. See supra note 179 and accompanying text. There may even be a fourth statute, as Madison's Encouragements Power likely stemmed from text in the preamble to North Carolina's copyright statue. See Oliar, supra note 98.
278. See Oliar, supra note 98.
279. This argument would not be free of difficulties. There exists considerable contemporaneous evidence that suggests that the boundary line between the fields of copyright and patent laws was historically more blurred than it is today. See Oliar, supra note 98.
280. But see Marshall Leaffer, Life After Eldred: The Supreme Court and the Future of Copyright, 30 WM. MITCHELL L. REV. 1597, 1599 (2004) ("Eldred's primary argument was that the CTEA did not 'promote science and useful arts . . . .'");
281. Thomas B. Nachbar, Judicial Review and the Quest to Keep Copyright Pure, 2 J. TELECOMM. & HIGH TECH. L. 33, 38 (2004) ("The heart of [petitioners'] Copyright Clause challenge was that extensions to subsisting works do not promote progress, a requirement embodied in the Progress Phrase.").
282. Petitioners' "core claim" in the case, as their counsel described it, was that retroactive extensions would violate federalism, not progress. If the Court did not strike CTEA down, they argued, this would open the door for an endless series of retroactive extensions that would secure rights to authors in perpetuity. This would violate "limited times," and thus the basic principle that there must be limits on government's power. When they argued that CTEA was unconstitutional, it was not because they brought forth empirical evidence that CTEA retarded progress. It was an argument of principle that upholding CTEA, regardless of its effects on progress, would violate the basic principle of a limited government. See LAWRENCE LESSIG, FREE CULTURE 231, 234-43 (2004) (noting that the Supreme Court's new federalism jurisprudence was the core of petitioners' argument, and nobly and candidly suggesting that arguing the case based on harm rather than principle may have been more successful). If so, this may explain best (1) why petitioners brought the case in the D.C. District Court, (2) why after the district court relied on circuit precedent, Schnapper v. Foley, 667 F.2d 102 (D.C. Cir. 1981), in dismissing their case, petitioners saw conceding in the D.C. Circuit that the Progress Clause is not a limitation immaterial to their case, (3) why they refused to adopt amicus's argument to the contrary at oral argument in the D.C. Circuit, and (4) why they kept focusing on the federalism point at oral argument before the Supreme Court. See id.; infra note 243 and accompanying text (discussing the concession). The alternative view - that the Progress Clause as a limitation was petitioners' main argument, which they were forced to concede due to Schnapper - does not make full sense as it cannot explain satisfactorily the aforementioned four. See infra note 243. To wit, had the Progress Clause as an independent limitation been petitioners' core argument, they would not have conceded it. Rather, they would have argued it in the alternative, knowing it would be likely rejected in the D.C. Circuit, but keeping it as grounds for their en bane rehearing and cert petitions.
283. The Court opened its decision with the following description of petitioners' Intellectual Property Clause argument before it: [Petitioners] seek a determination that the CTEA fails constitutional review under . . . the Copyright Clause's 'limited Times' prescription. . . . Congress went awry in enlarging the term for published works with existing copyrights. The 'limited Tim[e]' in effect when a copyright is secured, petitioners urge, becomes the constitutional boundary, a clear line beyond the power of Congress to extend. Eldred v. Ashcroft, 537 U.S. 186, 193 (2003).
284. Id. at 193.
285. See id. at 194-96.
286. Id. at 196-98.
287. See id. at 199-204 (consulting contemporaneous and contemporary dictionaries, using logical inferences about the relation between prospective and retroactive extensions, examining retroactive extensions in patent cases and copyright statutes, and taking into account justice, policy, and equity considerations).
288. See id. at 204-08.
289. See id. at 208-10.
290. See id. at 210-17.
291. See id. at 217-18.
292. See id. at 218-21.
293. See id. at 221-22.
294. Even if the major question in Eldred had been whether CTEA "promote[d] progress," the Supreme Court, whose analysis was highly affected by originalist considerations, would nevertheless have to reconsider its holding in light of the finding in this Article that the Framers intended the Progress Clause as a limitation. As explained above, the Court decided Eldred following an agreement between the parties that the Progress Clause was not an independent limitation. That was one interpretive route in an open debate, but this Article has shown it to be refuted by the evidence.
295. See Eldred, 537 U.S. at 197, 211 (holding petitioners' to their concession). Some suggested that the concession was driven by litigation considerations. See Figueroa v. United States, 57 Fed. Cl. 488, 500 n.33 (2003) (suggesting that petitioners had to concede that point because D.C. Circuit precedent barred such argument (citing Eldred v. Reno, 239 F.3d 372, 382 (D.C. Cir. 2001) (Sentelle, J., dissenting))); Solum, supra note 47, at 61 (same). One is left wondering whether not having conceded this point would have made a difference in the Supreme Court.
296. In granting the Attorney General's motion for a judgment on the pleadings, the District Court followed D.C. Circuit precedent, Schnapper v. Foley, 667 F.2d 102, 112 (D.C. Cir. 1981), in holding that the Progress Clause does not limit Congress. On appeal to the D.C. Circuit, the Eldred plaintiffs-appellants conceded that the preamble of the Clause was not a substantive limit on Congress's power. See Eldred v. Reno, 239 F.3d 372, 378 (D.C. Cir. 2001). An amicus brief did not so concede. See Brief of Eagle Forum, supra note 64. Plaintiffs-appellants argued before the D.C. Circuit that it should examine amicus's argument. Affirming the decision below, the D.C. Circuit held appellants to their concession and refused to consider amicus's argument. It noted that the argument that the Progress Clause is a limitation was not properly before it and that resolving that argument was not necessary for deciding the case. The court also noted that amicus's argument would run up against Schnapper, a circuit precedent that only an en bane panel could reverse. See Eldred, 239 F.3d at 377-78, 380. Plaintiffs-appellants petitioned for a rehearing and filed a suggestion for a rehearing en bane, in which they argued that the appellate panel erred by not considering amicus's argument. The D.C. Circuit denied these petitions. It could not find error in passing over amicus's argument where appellants took a view "diametrically opposed" to amicus's and refused to adopt amicus's view at oral argument, and where amicus raised a constitutional question about which the parties were in agreement. See Eldred v. Ashcroft, 255 F.3d 849, 850-51 (D.C. Cir. 2001). As a part of their petition for certiorari, petitioners asked the Supreme Court to review the D.C. Circuit's refusal to consider amicus's argument that the Progress Clause is an independently enforceable limitation. The Court initially granted certiorari on all questions but later modified it to specifically deny certiorari on this issue. See Petition for a Writ of Certiorari at i, Eldred, 537 U.S. 186 (No. 01-618), 2001 WL 34092017 (challenging the D.C. Circuit's refusal to consider amicus's argument in Question 3); see also Eldred v. Ashcroft, 534 U.S. 1160 (2002) (modifying previous grant of certiorari as to deny review of Question 3). Consequently, the Court decided Eldred while assuming that the argument that the Progress Clause is a limitation was not before it. See also supra note 243 and accompanying text.
297. See supra note 244.
298. See Brief for Petitioners at 19, Eldred v. Ashcroft, 538 U.S. 916 (2003) (No. 01-618), 2002 WL 32135676 ("2. Retroactively Extended Copyright Terms Do Not 'Promote the Progress of Science'").
299. See Eldred, 537 U.S. at 211-12: [P]etitioners contend that the CTEA's extension of existing copyrights does not 'promote the Progress of Science' as contemplated by the preambular language of the Copyright Clause. To sustain this objection, petitioners do not argue that the Clause's preamble is an independently enforceable limit on Congress' power. See 239 F.3d, at 378 (Petitioners acknowledge that 'the preamble of the Copyright Clause is not a substantive limit on Congress' legislative power.'). Rather, they maintain that the preambular language identifies the sole end to which Congress may legislate; accordingly, they conclude, the meaning of 'limited Times' must be 'determined in light of that specified end'. The CTEA's extension of existing copyrights categorically fails to 'promote the Progress of Science,' petitioners argue, because it does not stimulate the creation of new works but merely adds value to works already created. Id. (citations omitted); see also id. at 197 (noting that the D.C. Circuit "[s]pecifically . . . rejected petitioners' plea for interpretation of the 'limited Times' prescription not discretely but with a view to the 'preambular statement of purpose'" and that the D.C. Circuit "took into account petitioners' acknowledgement that the preamble itself places no substantive limit on Congress' legislative power").
300. By this stage in the opinion, one would remember, the Court has already determined that "limited" "at the time of the Framing" meant what it means today - "confine[d] within certain bounds, restrain[ed], or circumscribe[d]" - and found that the retroactive extension did not violate this limitation as it stands on its own. See Eldred, 537 U.S. at 199-204.
301. See id. at 210; id. at 214 (noting that petitioners' "assertion that the Copyright Clause 'imbeds a quid pro quo'" is "[c]losely related to petitioners' preambular argument").
302. See id. at 211-12.
303. See id. al 212 ("[t]he primary objective").
304. See id. at 212-13. This is but a corollary to the D.C. Circuit's claim that petitioners could not logically concede that the preamble had no binding force, "yet maintain that it limits the permissible duration of a copyright more strictly than does the textual requirement that it be for a 'limited Time.'" See Eldred v. Reno, 239 F.3d 372, 378.
305. See Eldred, 537 U.S. at 213-14.
306. For petitioners' argument and its rejection, see id. at 211-12.
307. See supra note 235 and accompanying text (the Eldred Court started by spelling out the meaning of "limited times"); The Trade-Mark Cases, 100 U.S. 82, 94 (1879) (defining the meaning of "inventions" and "writings" of "authors" to determine whether the protection of trademarks was authorized under the Clause); see also infra notes 264-65 (showing how the Graham and M'Culloch Courts imply that Congress deserves deference after it has been determined that it acted within its powers).
308. See infra notes 257, 260 and accompanying text.
309. See Eldred, 537 U.S. at 199.
310. See id. at 209-10 ("[A] regime of perpetual copyrights 'clearly is not the situation before us' . . . . Those earlier Acts did not create perpetual copyrights, and neither does the CTEA.") (citation omitted); see also KISS Catalog v. Passport Int'l Prods., 350 F. Supp. 2d 823, 832, 837 (C.D. Cal. 2004) (finding 17 U.S.C. § 1101(a)(3), a civil anti-bootlegging provision, unconstitutional because it violates the "limited Times" limitation in the Clause), rev'd, 405 F. Supp. 2d 1169, 1173 (C.D. Cal. 2005); United States v. Martignon, 346 F. Supp. 2d 413, 423-24, 429 (S.D.N.Y. 2004) (finding 18 U.S.C. § 2319A, a criminal anti-bootlegging provision, unconstitutional because it violates the "limited Times" and "writings" limitations in the Clause).
311. See Eldred, 537 U.S. at 208-09.
312. See The Trade-Mark Cases, 100 U.S. at 94 (suggesting that the "word writings may be liberally construed as it has been," but nevertheless requires the protected works to be "original, founded in the creative powers of the mind"); see also H.R. REP. No. 60-2222, at 6-7 (1909) (suggesting that, to be constitutional, an act has not only to be subjectively intended by Congress to "promote [] progress" but also that its "spirit . . . must . . . promote the progress of science and the useful acts," and it also has to be "designed to accomplish this result" which are objective criteria beyond Congress's best intentions).
313. See Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 346 (1991) (concluding that "[o]riginality is a constitutional requirement" from the definitions of "authors" and "writings" in The Trade-Mark Cases, 100 U.S. 82 (1879) and Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884)).
314. Feist Publ'ns, Inc., 499 U.S. 340, 346 (1991).
315. See id. at 344 (holding that facts are uncopyrightable); The Trade-Mark Cases, 100 U.S. at 94 (1879) (holding that trademarks are beyond Congress's power under the Clause).
316. See Graham v. John Deere Co., 383 U.S. 1, 5-6 (1966) ("The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose.") In Graham, the Court explained that "[w]ithin the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim." Id. at 6.
317. See M'Culloch v. Maryland, 17 U.S. 316 (1819): We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. Id. at 421. That Eldred seems to follow M'Culloch's analysis is corroborated by the fact that Eldred adopted M'Culloch's approach vis-à-vis pretextual congressional legislation. Compare M'Culloch, 17 U.S. at 423 ("[S]hould congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land."), with Eldred v. Ashcroft, 537 U.S. 185, 209 ("Nothing before this Court warrants construction of the CTEA's 20-year term extension as a congressional attempt to evade or override the 'limited Times' constraint.").
318. See Eldred, 537 U.S. at 199 (opening the first stage of inquiry by stating that "[w]e address first the determination of the courts below that Congress has authority under the Copyright Clause to extend the terms of existing copyrights"); id. at 204 (opening the second state of the inquiry by stating that "[s]atisfied that the CTEA complies with the 'limited Times' prescription, we turn now to whether it is a rational exercise of the legislative authority conferred by the Copyright Clause. On that point, we defer substantially to Congress.").
319. For example, the court noted the goals of uniformity with E.U. law, the improvement of the U.S.-E.U. balance of trade, and intergenerational equity among authors. See Eldred, 537 U.S. at 204.
320. Id.
321. Petitioners' means/ends argument was that the Progress Clause was the "sole end" for copyright legislation, but the Court was willing to go only as far as it being the "primary objective." Id. at 211-12. This allowed the Court to say, in passing, that the legislative objectives invoked earlier, which sufficed for the finding that a rational basis existed between the CTEA and the advancement of generally legitimate governmental ends, would suffice for the finding of a rational basis between the CTEA and promotion of progress in particular. The Court does not explain what other ends intellectual property legislation is constitutionally allowed to serve. One possibility is that the concession about the non-binding character of the preamble carried over to mean that even as ends, the Progress Clause is non-exclusive of other ends.
322. See id. at 214.
323. See id. at 204.
324. No. C-04-1127 MMC, 2004 WL 2663157 (N.D. Cal. Nov. 19, 2004), appeal filed, No. 04-17434 (9th Cir. Jan. 19, 2005).
325. Pub. L. No. 94-553, 90 Stat. 2541 (1976)
326. Pub. L. No. 100-568, 102 Stat. 2853 (1988)
327. Pub. L. No. 102-307, 106 Stat. 264 (1992)
328. Kahle, 2004 WL 2663157, at *1.
329. Id. (reviewing plaintiffs' count three arguments)
330. See id. at *9.
331. The court in Kahle stated: [P]laintiffs' argument is that recent copyright law . . . violates the Copyright Clause by failing to promote the Progress of Science. Eldred has foreclosed this type of argument, however, by holding that the Progress of Science is promoted by rewarding authors for their creative labor . . . . Consequently, the Court will review the statutes at issue only to determine whether Congress had a rational basis for concluding that the statutes at issue promote the Progress of Science. Id. at *10 (citations omitted). Note that Kahle, just like Nimmer, supra note 49, and Eldred, saw the difference between the Clause as an independently enforceable limitation, and the Clause as a non-binding preambular statement of purpose.
332. See Appellants' Opening Brief at 1-2, Kahle v. Ashcroft, No. 04-17434 (9th Cir. Jan. 19, 2005), available at http://cyberlaw.stanford.edu/about/cases/ AOB%20-%20Kahle.pdf.
333. 407 F.3d 1262 (D.C. Cir. 2005).
334. Pub. L. No. 103-465, 108 Stat. 4809, 4976 (1994) (codified as amended at 17 U.S.C. §§ 104A, 109 (2000)).
335. See Luck's Music, 407 F.3d at 1263.
336. Id.
337. See supra note 56 and accompanying text.
338. See Luck's Music, 407 F.3d at 1265.
339. See id. at 1263-64.
340. No. Civ. 01-B-1854 (BNB), 2005 WL 914754 (D. Colo. Apr. 20, 2005) (mem.), appeal filed, No. 05-1259 (10th Cir. July 18, 2005).
341. Id.
342. See id. at *11-*14 (reviewing Congressional retractions of material from the public domain under the Copyright Act of 1790, the Patent Act of 1832, and the Copyright Acts of 1919 and 1941).
343. Id. at *14.
344. Golan v. Gonzales, No. 05-1259 (10th Cir.).
345. See Appellants' Opening Brief at 46-54, Golan v. Gonzales, No. 05-1259 (10th Cir. 2005), Available at http://cyberlaw.stanford.edu/archives/GolanAOB. pdf/Appellants%20Opening%20Brief.pdf.
346. Figueroa v. United States, 66 Fed. Cl. 139, 143 (2005).
347. Id. at 150-52.
348. Id.
349. See Eldred v. Ashcroft, 537 U.S. 186, 193 (2003) ("The 'limited Tim[e]' in effect when a copyright is secured, petitioners urge, becomes the constitutional boundary, a clear line beyond the power of Congress to extend."); id. at 217 ("[Petitioners argue] that extending existing copyrights violates the Copyright Clause per se . . . .").
350. See Luck's Music Library v. Gonzales, 407 F.3d 1262, 1263 (D.C. Cir. 2005) ("[Petitioners] are wrong that the Clause creates any categorical ban on Congress's removing works from the public domain.").
351. See Golan v. Gonzales, No. Civ. 01-B-1854 (BNB), 2005 WL 914754, at *3 (D. Colo. Apr. 20, 2005) (mem.) (noting that plaintiff's perceive an "absolute bar" to restoring copyrights to works that have passed into the public domain).
352. See supra Part IV.
353. See supra Part V.
354. See text accompanying supra note 227.
355. Supreme Court precedent is replete with dicta about the limiting nature of the Progress Clause and that the ultimate goal of the intellectual property system is public - the advancement of human knowledge - rather than the conferral of private property rights. See, e.g., quote from Graham, supra note 191; Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 428-29 (1984). These dicta reflect the basic policy underlying American intellectual property law, utilitarianism. Courts and commentators have advocated judicial restraint in achieving these goals based on the relative lack of institutional competence and the desire to avoid the counter-majoritarian difficulty, but these policy arguments have been advanced to support (and are expressed by) a deferential standard of review rather than to negate the limiting nature of the Progress Clause.
356. In doing so, this Part will address the major remaining consideration in constitutional interpretation, pragmatism. See generally BOBBITT, supra note 27 (reviewing considerations relevant in constitutional interpretation).
357. See supra note 89; see also Eldred, 537 U.S. at 243 (Breyer, J., dissenting) ("This Court has made clear that the Clause's limitations are judicially enforceable.").
358. For suggestions as to what would be an appropriate standard of review for the Clause, see, for example, Nachbar, supra note 229, at 34, passim (suggesting that "copyright laws deserve the most deferential standard of judicial review conceivable"); Schwartz & Treanor, supra note 16, passim (suggesting that intellectual property laws should be subject to deferential review); Richard A. Epstein, The Dubious Constitutionality of the Copyright Term Extension Act, 36 LOY. L.A. L. REV. 123, 134-35 (2002) (suggesting the appropriateness of an intermediate scrutiny standard). See also Eldred, 537 U.S. at 245 (Breyer, J., dissenting) (suggesting a three part heightened standard of review); Brief for Petitioners at *31, Eldred, 537 U.S. 186 (No. 01-618), 2002 WL 1041928, (suggesting the adoption of a "congruence and proportionality" standard). The analysis of the Court in Eldred was deferential, although the Court did not specify or name the standard it applied explicitly.
359. See Eldred, 537 U.S. at 190 ("[T]he Copyright Clause . . . empowers Congress to define the scope of the substantive right. Judicial deference to such congressional definition is 'but a corollary to the grant to Congress of any Article I power.'" (quoting Graham v. John Deere Co., 383 U.S. 1, 6 (1966)) (citation omitted)).
360. See generally Zimmerman, supra note 105 (noting the importance of discourse about what the Progress Clause means).
361. See Nachbar, supra note 229, at 71 n.135 (arguing for a very deferential standard of review but indicating that he does "not believe Congress should have absolute authority to interpret the Copyright Clause" and suggesting that Congress has no power to create inalienable copyrights, which would fail to "promote [] progress").
362. This step should not prove controversial because it can be taken also by those who believe that the Progress Clause is either a preamble or that it is a limitation that should be enforced by Congress.
363. See generally Dan L. Burk & Mark A. Lemley, Policy Levers in Patent Law, 89 VA. L. REV. 1575 (2003) (suggesting that courts should tailor the application of general patent law principles to different industries to optimally support the progress of innovation therein).
364. 387 F.3d 522 (2004).
365. Id. at 529.
366. Id. at 529-30.
367. Id. at 546.
368. Id. at 552 (Merritt, J., concurring).
369. Id.
370. Id. at 553. As Judge Merritt explained: Congress gives authors and programmers exclusive rights to their expressive works (for a limited time) so that they will have an incentive to create works that promote progress. Lexmark's reading of the extent of these rights, however, would clearly stifle rather than promote progress. It would allow authors exclusive control over not only their own expression, but also over whatever functional use they can make of that expression in manufactured goods. Giving authors monopolies over manufactured goods as well as over their creative expressions will clearly not "promote the Progress of Science and the useful Arts," but rather would stifle progress by stamping out competition from manufacturers who may be able to design better or less expensive replacement parts like toner cartridges. Id.
371. One could disagree with Judge Merritt's reasoning. The point of the example, however, is that Judge Merritt asked the right question - namely which interpretation of the statute would promote progress in this context - rather than that he necessarily got the answer right. Judge Merritt has thus provided us with a data point, namely a reasoned argument as to what promotes progress in a specific context, which can be relied upon or revisited by future courts.
372. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) ("From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose, '[t]o promote the Progress of Science and useful Arts'"); Castle Rock Entm't, Inc. v. Carol Publ'g Group, 150 F.3d 132, 141 (2d Cir. 1998) ("The ultimate test of fair use, therefore, is whether the copyright law's goal of 'promoting the Progress of Science and useful Arts,' U.S. Const., art. I, § 8, cl. 8, 'would be better served by allowing the use than by preventing it.'").
373. See 17 U.S.C. § 107 (2000) (listing the purpose and character of the use, the nature of the work, the proportion of the work used as compared to the whole, and the effect of the use on the potential market for the copyrighted work).
374. See id. (stating that in a fair use case, "the factors to be considered shall include"); id. § 101 (noting that terms like "including" are illustrative and not limitative).
375. 336 F.3d 811 (9th Cir. 2003).
376. Id. at 815.
377. Id. at 818-19.
378. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (citing Pierre N. Levai, Toward a Fair Use Standard, 103 HARV L. REV. 1105, 1111 (1990)).
379. To wit, the Supreme Court asked whether the infringing work was transformative. The Ninth Circuit asked whether an infringing use of the original work was transformative.
380. Kelly, 336 F.3d at 818.
381. "Better" is meant in the sense that it would have kept the conceptual coherence of the first fair use factor intact, while recognizing explicitly the nature of the rationale driving the circuit court's conclusion. Such an approach would have likely allowed lower courts to further participate in the process of delineating the meaning of "promot[ion of] progress" under the Clause rather than predispose them to further stretch the meaning of transformativeness under the first factor. See, e.g., Field v. Google Inc., 412 F. Supp. 2d 1106, 1117-1119 (D. Nev. 2006) (finding that website caching by a search engine is transformative and weighs heavily in favor of a fair use finding following Kelly's analysis).
382. For example, courts hearing copyright misuse arguments could decide them by asking, among other things, whether a finding of misuse would promote the progress of science and useful arts better than the opposite ruling.
383. Like Justice Breyer in Eldred, I believe that weighing costs and benefits is at the heart of the inquiry, and that in this area the difference between "unwise" and "unconstitutional" is a matter of degree. See Eldred v. Ashcroft, 537 U.S. 186, 243 (2003) (Breyer, J., dissenting). I also share his view that copyright statutes should promote Clause related objectives. See id. at 244. Breyer's test may have been rejected by the Eldred majority because its relevance to the interpretation of "limited Times" may have been unclear to the majority. As a test for judging whether there has been advancement, examining forward movement (benefits) and backwards movement (costs) seems more appropriate. My test differs from Breyer's in that it does not combine First Amendment elements, does not overemphasize the distinction between private and public benefits, and operates on a lower level of judicial review.
384. See supra note 303.
385. See id. at 218 (majority opinion); Graham v. John Deere Co., 383 U.S. 1, 6 (1966).
386. Cf. Mitchell Bros. v. Cinema Adult Theater, 604 R2d 852, 859 (5th Cir. 1979) (rejecting the view that courts should declare individual intellectual property grants as unconstitutional for failure to "promote progress").
387. See William M. Landes & Richard A. Posner, Indefinitely Renewable Copyright, 70 U. CHI. L. REV. 471, 484-95 (2003) (suggesting that the merits of enhanced intellectual property protection are not limited to greater incentives to create, but also include greater incentives to maintain the property after creation and to prevent use congestion externalities);
388. Stan J. Liebowitz & Stephen Margolis, Seventeen Famous Economists Weigh In on Copyright: The Role of Theory, Empirics, and Network Effects, 18 HARV. J. L. & TECH. 435, 447-52 (2005) (highlighting the stewardship incentive that property rights provide and their ability to prevent negative network effects that would result from open-access).
389. The case would have been different had Congress's power been to "regulate" the arts and sciences (rather than promote their progress) as its commerce power is defined, for example.
390. See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251-52 (1903) (refusing to pass judgment on the merit of individual works of authorship); Mitchell Bros. v. Cinema Adult Theater, 604 F.2d 852, 859 n.15 (5th Cir. 1979) ("[T]he Constitution does not require that each individual work be shown to promote the useful arts in order to be copyrightable."); Belcher v. Tarbox, 486 F.2d 1087, 1088 (9th Cir. 1973) (rejecting the defense of fraudulent content in copyright infringement and suggesting that "[t]here is nothing in the Copyright Act to suggest that the courts are to pass upon the truth or falsity, the soundness or unsoundness, of the views embodied in a copyrighted work. The gravity and immensity of the problems, theological, philosophical, economic and scientific, that would confront a court if this view were adopted are staggering to contemplate. It is surely not a task lightly to be assumed, and we decline the invitation to assume it").
391. See Mitchell Bros., 604 R2d at 854-55 & nn.4-5 (5th Cir. 1979) (reviewing Congress's hostility to content-based restrictions on copyrightability and its repeal of such provisions that were instated by the Copyright Acts of 1856 and 1874).
392. See Eldred v. Ashcroft, 537 U.S. 186, 212 (2003) ("The 'constitutional command,' we have recognized, is that Congress, to the extent it enacts copyright laws at all, create a 'system' that 'promotefs] the Progress of Science.'" (citing Graham v. John Deere Co., 383 U.S. 1, 6 (1966))).
393. U.S. CONST., art. I, § 8, cl. 8.
394. Id., art. I, § 8, cl. 3.
395. Id., art. I, § 8, cl. 14.