The (constitutional) convention on IP: A new reading

UCLA Law Review

Volumn 57, Issue 2, 2009, Pages 421-480

  Oliar, Dotan ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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EID: 79951477865     PISSN: 00415650     EISSN: None     Source Type: Journal    
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References (419)

1. See, e.g., Eldred v. Ashcroft, 537 U.S. 186 (2003) (upholding a retroactive twenty-year extension of the copyright term)
2. Golan v. Gonzales, 501 FJd 1179, 1186-87 (10th Cir. 2007) (upholding the constitutionality of restoring copyright protection in public domain works)
3. Luck's Music Library, Inc. v. Gonzales, 407 F.3d 1262 (D.C. Cir. 2005) (same)
4. United States v. Martignon, 492 FJd 140 (2d Cir. 2007) (upholding a criminal prohibition on the making of live bootleg recordings)
5. United States v. Moghadam, 175 F.3d 1269,1282 (11th Cir. 1999) (same)
6. KISS Catalog v. Passport Int'l Prods., 405 F. Supp. 2d 1169, 1173 (CD. Cal. 2005) (upholding a provision granting a civil cause of action against the making of live bootleg recordings)
7. Universal City Studios, Inc. v. Corley, 273 FJd 429, 444-59 (2d Cir. 2000) (upholding the constitutionality of the Digital Millennium Copyright Act of 1998)
8. United States v. Elcom Ltd., 203 F. Supp. 2d 1111, 114M2 (N.D. Cal. 2002) (same)
9. 321 Studios v. MGM Studios, 307 F. Supp. 2d 1085, 1101-05 (N.D. Cal. 2004) (same)
10. Kahle v. Ashcroft, No. C-04-1127 MMC, 2004 WL 2663157 (N.D. Cal. Nov. 19, 2004) (upholding the constitutionality of the Copyright Act of 1976, the Berne Convention Implementation Act of 1988, the Copyright Renewal Act of 1992 and the Copyright Term Extension Act of 1998), off A Kahle v. Gonzales, 487 FJd 697 (9th Cir. 2007)
11. Figueroa v. United States, 66 Fed. CI. 139,152 (2005) (upholding the constitutionality of governmental use of patent fees for nonpatent ends).
12. U.S. CONST, art. I, § 8 ("The Congress shall have Power ⋯ To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries").
13. In perhaps its greatest foray into the meaning of the IP Clause to date, the U.S. Supreme Court suggested that "([t]o comprehend the scope of Congress' Copyright Clause power, 'a page of history is worth a volume of logic.
14. See Eldred, 537 U.S. at 188 (quoting N.Y. Trust Co. v. Eisner, 256 U.S. 345, 349 (1921))
15. As a part of its analysis, the Court referred no less than ten times to the Framers' intent and the Clause's original understanding, and the dissenting justices seemed to agree with the majority's historical attention.
16. See infra note 106.
17. See infra note 107.
18. See, e.g., DORON S. BEN-ATAR, TRADE SECRETS: INTELLECTUAL PIRACY AND THE ORIGINS OF AMERICAN INDUSTRIAL POWER 136 (2004) ("The framers have left us little by way of explaining their reasons [for including the Clause in the Constitution].")
19. Michael D. Birnhack, The Idea of Progress m 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.")
20. Oren Bracha, The Commodification of Patents 1600-1836: How Patents Became Rights and Why We Shoidd Care, 38 LOY. LA. L REV. 177, 216 (2004) (noting "the little we know about the legislative history of the clause")
21. Craig W. Dallon, Original Intent and the Copyright Clause: Eldred v. Ashcroft Gets It Right, 50 ST. LOUIS U. L.J. 307,318 (2006) (explaining that "there is scarce evidence expressing any contemporaneous views of the Framers of the Copyright Clause")
22. Alan L. Durham, "Useful Arts" in the Information Age, 1999 BYU L REV. 1419, 1429 ("There is little 'legislative history' to assist in interpreting the intellectual property clause of the Constitution.")
23. Jane Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 TUL. L. REV. 991, 999 (1990) (noting that the "records from the Constitutional Convention concerning the copyright clause are extremely sparse")
24. Marci A. Hamilton, Copyright at the Supreme Court: A Jurisprudence of Deference, 47 J. COPYRIGHT SCC'Y U.S.A. 317, 320 (2000) (explaining that "the history of the drafting of the Clause left little for the courts to employ")
25. 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, 1148-49 (reviewing all that has been known about the Convention's intellectual property record, namely that James Madison and Charles Pinckney were "primary forces behind the addition of the Clause" and that the Clause was unanimously adopted without recorded debate)
26. 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) (arguing that "any [interpretive] approach based on the drafting ⋯ discussions stumbles on the thinness of the record")
27. Paul M. Schwartz & William Michael Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property, 112 YALE LJ. 2331, 2375 (2003) (calling the Convention's record "[t]he most relevant historical evidence directly bearing on the original understanding of the Copyright Clause" but noting that "(t]here is little evidence from the Constitutional Convention [directly bearing on the original understanding of the Copyright Clause]")
28. 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.")
29. Diane Leenheer Zimmerman, It's an Original! (?): In Pursuit of Copyright's Elusive Essence, 28 COLUM. J.L & ARTS 187,198 & a73 (2005) ("[L]ittle⋯ specific or direct information is available about the thinking of the Framers.")
30. Recent Case, Constitutional Law-Copyright Clause- Second Circuit Upholds Perpetual Anri-Boodeggtng Protection Against Copyright Clause Challenge-United States v. Martignon, 492 F.3d 140 (2d Or. 2007), 121 HARV. L. REV. 1455,1460 (2008) (observing that "the records of the Constitutional Convention provide little guidance as to the original understanding of the Copyright Clause").
31. DotanOliar, Making Sense o/ the Intellectual Property Clause: Prcnrtotim of Progress as a Limitation on Congress's Intellectual Property Power, 94 GEO. LJ. 1771 (2006).
32. See generally id. (arguing that the progress language in the Clause limits Congress's IP power and suggesting how judges might enforce this limitation). In that work I assumed implicitly that Pinckney's Plan did not affect the Framers' IP deliberations. I support that assumption in Part I of this Article. That work further assumed that Madison made a patent power proposal.
33. See id. at 1790 n.98 (citing to an early draft of this Article). This Article shows this latter assumption to be true, and that the argument about the limiting nature of the progress language is therefore warranted. For the argument and how it relies on this latter assumption
34. see infra Part II.C.
35. See also infra note 9 and accompanying text.
36. See infra Part I.
37. See infra Part II. The truth of this finding, established here, was simply assumed and relied upon in my previous work.
38. See Oliar, supra note 6, at 1790 n.98 (noting that reliance)
39. see also supra note 7 and accompanying text.
40. See infra Part III.
41. Seetn/raPart IV.A.
42. See infra Part IV.B.
43. See infra Part IV.B.
44. See infra Part IV.C.
45. Thus, this Article illuminates the interpretive pull of two of the various considerations that inform constitutional interpretation generally.
46. See infra Part V.
47. The Convention's Journal and Madison's Journal are printed in scattered installments in THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (Max Farranded., 1911) [hereinafter RECORDS]. This multi-volume source is ordered chronologically, and for each day of the Convention it prints all entries from the journals documenting it. Other delegates kept private journals of the Convention's events, but these-also printed in RECORDS, supra-are generally sporadic, incomplete, and in any case contain no information relevant to intellectual property.
48. See James Madison's Journal (Aug. 6,1787), rn 2 RECORDS, supra note 17, at 177,177-89.
49. Charles Pinckney, 1757-1824, of whom this Article speaks, is not to be confused with his cousin and fellow South Carolina delegate to the Convention, Charles Cotesworth Pinckney, 1746-1825, nor with the many other Charles Pinckneys of the prominent South Carolina family.
50. For the intellectual property powers proposed
51. see infra Table 1.
52. This committee had one member from each state. It had eleven rather than thirteen members because Rhode Island did not send delegates and the New York delegation had left the Convention by that date.
53. Convention's Journal (Sept. 5, 1787), in 2 RECORDS, supra note 17, at 505, 505
54. see also US. CONST, art. I, §8, d. 8.
55. In previous work, I suggested what these reasons likely were.
56. See Oliar, supra note 6, at 1810-18 (suggesting, among other things, that the Framers intended Congress's power to grant IP rights to be limited to the ends of promoting progress in die arts and sciences, and to limit permissible means to exclusive rights).
57. Convention's Journal (Sept. 8,1787), in 2 RECORDS, supra note 17, at 544,547.
58. Report of Committee of Style (Sept. 10-12), in 2 RECORDS, supra note 17, at 595.
59. Id. at 655.
60. Four plans for a federal government were proposed in the early stages of the Convention. The Virginia Plan and Pinckney's Plan were proposed on May 29,1787. In the following weeks, two additional plans were proposed: the New Jersey Plan (June 15, 1787), and Alexander Hamilton's Plan (June 18, 1787). For the plans
61. see DOCUMENTS ILLUSTRATIVE OF THE FORMATION OF THE UNION OF THE AMERICAN STATES 953-68 (Charles C. Tansill ed., 1927) [hereinafter DOCUMENTS ILLUSTRATIVE OF THE FORMATION].
62. See Letter From Charles Pinckney to Matthew Carey (Aug. 10, 1788), in 4 RECORDS, supra note 17, at 80 (suggesting that Pinckney had "laid before the convention" his original Plan and "the copy [he] gave to a gentleman at the northward").
63. But no later than October 14, 1787. See Charles Pinckney, Observations on the Plan of Government Submitted to the Federal Convention in Philadelphia (May 28, 1787), 3 RECORDS, supra note 17, at 106,106 n.1
64. see also infra note 43 (reviewing the Observations' publication in New York and South Carolina).
65. See Pinckney, supra note 29, at 106.
66. Id. at 122.
67. See John Quincy Adams, 4 Memoirs (May 13, 1819), m 3 RECORDS, supra note 17, at 430, 431 (describing the whereabouts of the Convention's papers after it adjourned, the disorderly state in which Adams found them, Congress's 1818 resolution to print them, and the President's request from Adams to print them).
68. See Letter From Charles Pinckney to John Quincy Adams (Dec. 30,1818), in 3 RECORDS, supra note 17, at 427,427-28 (containing Pinckney's response to Adams's request for a copy of his Plan).
69. See BRUCE W. BUGBEE, GENESIS OF AMERICAN PATENT AND COPYRIGHT LAW 193 n.8 (1967) ("After the Convention had ended, Pinckney published a pamphlet entitled Observations⋯ [in] which he suggested that Congress be empowered 'to secure to authors the exclusive rights to their performances and discoveries."')
70. EDWARD C. WALTERSCHHD, THE NATURE OF THE INTELLECTUAL PROPERTY CLAUSE 82, 104-05 (2002) ("(l]n a pamphlet published shortly after the federal convention ended, Pinckney alleged that in the South Carolina Plan he had proposed that the Congress have authority 'to secure to authors the exclusive rights to their performances and discoveries."')
71. Karl Fenning, The Origin of the Patent and Copyright Clause of the Constitution, 17 GEO. L.J. 109, 109-10 (1929) ("In this pamphlet Pinckney proposed to give authority to Congress 'to secure to authors the exclusive rights to their performances and discoveries.'")
72. Justin Hughes, How Extra-Copyright Protection of Databases Can Be Constitutional, 28 U. DAYTON L. REV. 159,172 n.47 (2002) (assuming that Pinckney's Plan referred to intellectual property)
73. Thomas A. Mitchell, Copyright, Congress, and Constitutionality: How the Digital Millennium Copyright Act Goes Too Far, 79 NOTRE DAME L. REV. 2115, 2120 (2004) ("Intellectual property protection was first proposed by Charles Pinckney on May 28,1787.").
74. The Plan was submitted on May 29. The one-day difference in date is discussed infra note 50.
75. For example, they begin by addressing "Mr. President," and immediately afterwards the delegates: "It is, perhaps, unnecessary to state to the House the reasons which have given rise to this Convention." Addresses to the Convention and fellow delegates are interwoven throughout the Observations, together with remarks concerning the greatness of the hour, the sense of heavy duty, the importance of the Convention, and the expectations of the American people and the world from the Convention.
76. See generally Pinckney, supra note 29, at 106-23
77. see also infra note 50.
78. Bugbee, Fenning, and Walterscheid do not believe Pinckney's Claim; namely, they think that Pinckney's Plan did not mention intellectual property.
79. See BUGBEE, supra note 34, at 193 n.8
80. WALTERSCHEID, supra note 34, at 82
81. Fenning, supra note 34, at 110-11. Walterscheid, however, is willing to accept as a possibility that the Plan included a copyright power, but not a patent power.
82. See WALTERSCHEID, supra note 34,at 124-25. Farrand believes die Claim to be more likely true than not; therefore, his suggested reconstruction of Pinckney's Plan includes the Observations' IP Part, although with a disclaimer.
83. See The Draught of a Foederal Government to be Agreed Upon Between the Free and Independent States of America, in 3 RECORDS, supra note 17, at 604,609 & n.3.
84. See BUGBEE, supra note 34, at 193 n.8 (noting that the contents of die 1818 Substitute are evidence tending to disprove the Claim)
85. WALTERSCHEID, supra note 34, at 82, 105 (mentioning Pinckney's character and the 1818 Substitute as tending to disprove the Claim)
86. see also infra note 39.
87. Madison was perhaps the first to suggest diat the 1818 Substitute was not a true substitute for the Plan.
88. See Letter From James Madison to W.A. Duer (June 5,1835), in 9 THE WRITINGS OF JAMES MADISON 553 (Gaillard Hunt ed., 1910) ("[T]he copy sent to Mr. Adams could not be the same with the document laid before the Convention."). There was no chance, he argued, that the delegates would have engaged in four months of intense argument only to agree on a text that was lying before them all that time.
89. See id. at 553 ("[T]he details and phraseology of the Constitution appear to have been anticipated [by the 1818 Substitute]."). He also made a detailed comparison of the inconsistencies between the 1818 Substitute and the Observations.
90. See id. at 558 n.l. In his correspondence, however, Madison mentioned a possible explanation for the resemblance between the 1818 Substitute and the Constitution.
91. See id. at 555 ("One conjecture explaining the phenomenon has been, that Mr. Pinckney interwove with the draught [sic] sent to Mr. Adams passages as agreed to in the Convention in the progress of the work, and which, after a lapse of more than thirty years, were not separated by his recollection."). Some of the contents of the 1818 Substitute differ from the views Pinckney expressed in the Convention.
92. See, e.g., id. at 553-54 (noting that while the 1818 Substitute suggests election of the House of Representatives by the people, on June 6, 1787, only eight days after the Plan was laid before the Convention, Pinckney suggested that the House be elected by the state legislatures). Some scholars called the 1818 Substitute a "pseudo draft" that "should be relegated to the depository of historical lies." Paul L Ford, Pinckney's Draft of a Constitution, 60 NATION 458, 459 (June 13, 1895)
93. Andrew C. McLaughlin, Sketch of Pinckney's Plan for a Constitution, 1787, 9 AM. HIST. REV. 735, 736 (1904) ("pseudo plan")
94. see also CLINTON ROSSITER, 1787: THE GRAND CONVENTION 331 n.* (1966) ("fraudulent document"). Also, it was shown convincingly that if in response to Adams's request Pinckney had taken the August 6, 1787, Committee of Detail's Draft Constitution as a base from which to work and "paraphrase[ed] to a small extent here and there, and interw[ove] as he went along some of the best-remembered features of his own plan⋯ the result would have been precisely like [the 1818 Substitute]." John Franklin Jameson, Studies in the History of the Federal Convention of 1787,1 ANN. REP. AM. HIST. ASS"N 87,124(1903).
95. See, e.g., ROSSITER, supra note 39 ("The kindest judgment that can be made about Pinckney is that his vanity was appalling and his memory even worse.")
96. see also supra note 39.
97. Letter From Charles Pinckney to John Quincy Adams, supra note 33, at 427-28 (cautioning that Pinckney has four or five drafts of the Plan, that he cannot be sure at the distance of thirty years which most resembles the Plan, that these drafts are generally the same, and admitting that a few days after the Convention began he changed some of his views).
98. See ANDREW J. BETHEA, THE CONTRIBUTION OF CHARLES PINCKNEY TO THE FORMATION OF THE AMERICAN UNION 44-47 (1937) (suggesting that the 1818 Substitute was one of the drafts of the Plan, but not identical to it)
99. CHARLES C. NOTT, THE MYSTERY OF THE PiNCKNEY DRAUGHT 130, 271-72 (1908) (suggesting that the Plan, the 1818 Substitute and the Observations were, or were related to, different versions of Pinckney's Plan).
100. See WALTERSCHEID, supra note 34, at 82 & n.12 (noting that Pinckney was "famous for his self-aggrandizement" and that no other evidence supports Pinckney's "self-serving claim")
101. see also CATHERINE DRINKER BOWEN, MIRACLE AT PHILADELPHIA: THE STORY OF THE CONSTITUTIONAL CONVENTION MAY TO SEPTEMBER 1787, at 39 (1966) (noting that Pinckney was known as "Constitution Charlie")
102. ROSSITER, supra note 39, at 327 (same). His reputation for taking credit is supported by the publication of the Observations, which were published almost in defiance of the secrecy vow the delegates made.
103. See OTT, supra note 42, at 138 (arguing that since the Observations were never read in die Convention, and since their copy was never among the Convention's papers, their publication did not formally break the secrecy vow). Even though Pinckney claimed that he only circulated the Observations among a close circle of friends, the Observations happened to find their way into public printing in New York.
104. See Letter From James Madison to George Washington (Oct. 14, 1787), in 5 THE WRITINGS OF JAMES MADISON, supra note 39, at 9-10. Additionally, they were published again in a newspaper in South Carolina, Pinckney's home state.
105. See Jameson, supra note 39, at 116 & n.c (noting that the Observations were published in the State Gazette of South Carolina in installments between October 29 and November 29, 1787). Contemporaneous correspondence also supports this reputation, as do speeches made by Pinckney at various times.
106. See Letter From George Washington to James Madison (Oct. 22, 1787), m 11 THE WRITINGS OF GEORGE WASHINGTON 175 (Worthington Chauncy Ford ed., 1891) ("Mr. C. Pinckney is un willing⋯ to lose any fame that can be acquired by the publication of his sentiments.")
107. Charles Pinckney at the House of Representatives (Feb. 13,1821), m 3 RECORDS, supra note 17, at 445,445-46.
108. See McLaughlin, supra note 39, at 741 ("[W]e can say that Pinckney suggested some thirty-one or diirty-two provisions which were finally embodied in the Constitution
109. of these, about twelve were originally in the Articles of Confederation⋯.")
110. Max Farrand, The Contributions of Charles Pinckney to the Formation of (he American Union by Andrew]. Bethea, 62 PA. MAG. HIST. 6k BIOGRAPHY 552, 552 (1938) (book review) ("Pinckney made considerable contributions to the framing of the Constitution that ought to be more generally recognized. To claim too much is to push him back into the shadow under which his reputation long rested.").
111. See generally BETHEA, supra note 42
112. NOTT, supra note 42.
113. Pinckney, supra note 29, at 106.
114. Jameson and McLaughlin interpreted this disclaimer literally: They understood the Claim to be that Pinckney may have delivered the Observations verbatim in parts on different dates. They seem not to have considered the possibility that the Observations put in a speech reveal views Pinckney expressed at different times and in various settings in the Convention.
115. See Jameson, supra note 39, at 120-23 (noting the disclaimer and concluding that the speech was never made, not even in parts on different dates); McLaughlin, supra note 39, at 735 (noting that the Observations may have been delivered on different dates as shorter speeches)
116. see also NOTT, supra note 42, at 138-39 (noting the disclaimer, but, since he believed that the Observations were truthfully prepared prior to the Convention and published after its adjournment without having been tampered with, concluding that Pinckney probably added the disclaimer as an afterthought since some of his speeches in the Convention resembled the Observations).
117. See, e.g., Jameson, supra note 39, at 121 & n.a (suggesting that Pinckney delivered the paragraph next to last in the Observations at the Convention on July 2, 1787);
118. McLaughlin, supra note 39, at 736 (suggesting that the fourteenth and fifteenth paragraphs in Pinckney's Observations were a part of a speech he gave in the Convention on June 8, 1787, since they are strikingly similar to the way Madison recorded Pinckney's speech in his journal).
119. The first of the two paragraphs starts with "[t]he next Article provides for⋯" The second paragraph that refers to intellectual property begins "[t]here is also an authority to⋯" Pinckney, supra note 46, at 122.
120. If this conclusion is accurate, a possible conjecture is that the Observations build on a written speech Pinckney intended to make in the Convention when he submitted his Plan, but which he never delivered. This sense is conveyed predominantly from the format of the Observations: Had Pinckney chosen to publicize his thoughts after the Convention ended, there would have been little reason for him to do so in a speech format. Surrounding circumstances support this conjecture. Pinckney probably expected to give a speech since Edmund Randolph, who presented the Virginia Plan before him, enjoyed this honor. Pinckney probably did not give a speech, as none is recorded in any of the several journals that survived the Convention. Further suggesting that he did not make a speech is the fact that he was the second youngest member of the Convention and did not secure other delegates' support for his Plan in advance. If indeed the Observations were based on such a speech, this may explain the fact that the Observations' title carries the date of May 28 rather than May 29. If in publishing the Observations Pinckney used the date that appeared on the speech he had prepared but did not make, and had this speech been finalized the day before it was due, it would have carried the date of May 28.
121. Cf. NOTT, supra note 42, at 122, 137-39 (suggesting that the Observations are the exact speech Pinckney intended to make on May 29,1787, but eventually did not).
122. This conclusion was based on the views Pinckney expressed in the Convention and on an elimination of other plans and propositions as possible sources of these extracts.
123. See J. Franklin Jameson, Portions of Charles Pinckney's Plan for a Constitution, 8 AM. HIST. REV. 509, 509-10 (1903). For the analysis of James Wilson's Extracts, see Jameson, supra note 39, at 128-32.
124. This demonstration was based on a sophisticated comparison of Wilson's outline with the Observations that showed that the series of issues each goes through exhibits substantial similarity in content and order.
125. See McLaughlin, supra note 39.
126. Convention's Journal (Aug. 18,1787), m 2 RECORDS, supra note 17, at 321,321.
127. See Jameson, supra note 39, at 122-23.
128. James Madison's Journal (Aug. 18, 1787), m 2 RECORDS, supra note 17, at 324,324 n.3 ("Mr. Pinkney [sic] proposed for consideration several additional powers which had occurred to him." (emphasis added)).
129. See, e.g., Hughes, supra note 34, at 172 n.47 (assuming that Pinckney's Plan referred to IP); Mitchell, supra note 34, at 2120
130. see also supra note 34.
131. The similarity between the Observations' IP Part and the Clause may suggest that the latter influenced the text of the former.
132. See Oliar, supra note 6, at 1810-16.
133. The sentence beginning with "That" may not be accurately tagged a congressional power, but the exact label is immaterial for present purposes.
134. Convention's Journal (Aug. 18, 1787), in 1 DOCUMENTARY HISTORY OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA, 1786-1870, at 130,130-31 (U.S. Bureau of Rolls and Library ed., Washington D.C., U.S. Dep't of State 1894) [hereinafter DOCUMENTARY HISTORY OF THE CONSTITUTION].
135. Id. at 130.
136. James Madison's Journal (Aug. 18, 1787), in 3 DOCUMENTARY HISTORY OF THE CONSTITUTION, supra note 60, at 554,554-55.
137. Madison revised his notes from the Convention on two different occasions after 1818, wishing to prepare them for posthumous publication. He edited his original journal by marking changes on the papers, such as by crossing out words or sentences, adding words or sentences over the original text, and pasting onto his notes sheets of paper with added text. 1 use the term Madison's Edited Journal to denote the text of Madison's Journal as changed by Madison's revisions.
138. See also infra note 77 and accompanying text.
139. James Madison's Edited Journal (Aug. 18, 1787), in 3 DOCUMENTARY HISTORY OF THE CONSTITUTION, supra note 60, at 555,555-56
140. see also supra note 63.
141. For a few relatively recent mentions of this puzzle, see, for example, Bimhack, supra note 5, at 34 n.159 (noting the puzzle regarding the role played by Madison and Pinckney)
142. Craig W. Dallon, The Problem With Congress and Copyright Law: Forgetting the Past and Ignoring the Public Interest, 44 SANTA CLARA L. REV. 365, 421 n.352 (2004) (noting the puzzle over who suggested patent proposals in the Convention, and discussing scholars' disagreement)
143. Durham, supra note 5, at 1431 n.52 ("The omission of [The Missing Power] from Madison's edited notes has not been explained.");
144. Tyler T. Ochoa & Mark Rose, The Anti'Monopoly Origins of the Patent and Copyritfit Clause, 84 J. PAT. & TRADEMARK OFF. SOC'Y 909, 922 n.79 (2002) (noting the puzzle);
145. Schwartz & Treanor, supra note 5, at 2375 (The puzzle is noted twice: "Madison may also have proposed a Patents Clause, although the record is confused[I]t is not clear whether Madison proposed a Patents Clause."). For the classic mention, see Fenning, supra note 34, at 112-13 (noting the omission of the Missing Power from the Convention's Journal without reconciling the records).
146. See, e.g., 3 THE FOUNDERS' CONSTrrUTION 40 (Philip B. Kurland & Ralph Lerner eds., 1987) (not mentioning the Missing Power among the intellectual property proposals made in the Convention).
147. See BUGBEE, supra note 34, at 127 ("[Madison's] revised notes indicate that he did not suggest a Federal patent power⋯ Furthermore, Pinckney is credited in Madison's self-revised journal with the proposal of a national patent institution-in effect, an 'admission against interest' by Madison.")
148. see also id. at 193 n.7 ("Only the patent proposal⋯ was dropped This would indicate that Madison, in editing his notes, felt that Pinckney alone had made die suggestion that the future Congress be empowered to grant patents.")
149. Schwartz 6k Treanor, supra note 5, at 2375 ("[Madison] subsequendy revised his notes to conform to die official journal, which suggests that he did not make this proposal concerning patents." (citation omitted)); WALTERSCHEID, supra note 34, at 103 ("Madison himself provides die best evidence diat it was Pinckney who first proposed that die Constitution grant power to the Congress to issue patents for useful inventions. Nonetheless, the claim continues to be made that Madison was one of diose responsible for suggesting that die Congress be given power to issue patents. This is not to say that Madison played no significant role in die origination of the intellectual property clause he obviously did. But it was in the context of protecting the rights of authors radier than diose of inventors." (citation omitted))
150. Ochoa 6k Rose, supra note 65, at 922 (suggesting diat Pinckney made a patent proposal, while Madison's role is unclear).
151. See Max Farrand, Introduction to 1 RECORDS, supra note 17, at xiii-xiv ("With notes so carelessly kept, as were evidently diose of die secretary, the Journal cannot be relied upon absolutely. The statement of questions is probably accurate in most cases, but the determination of those questions and in particular the votes upon diem should be accepted somewhat tentatively.").
152. See id. at xi
153. Letter From William Jackson to George Washington (Sept. 17, 1787), in 3 RECORDS, supra note 17, at 82.
154. Adams, supra note 32, at 433
155. see also id. at 431 (noting that when Adams found the Convention's papers, they "were so imperfect, and in such disorder, that to have published them, as they were, would have given to the public a book useless and in many respects inexplicable").
156. John Quincy Adams, 4 Memoirs, m 3 RECORDS, supra note 17, at 426, 426. Among the aforementioned missing papers was not only Pinckney's Plan, but also, among others, Alexander Hamilton's plan
157. see supra note 27, and minutes from the last days of the Convention. Adams, supra note 32, at 430, 431-32.
158. Farrand, supra note 68, at xii n.6 ("It would seem also that (Jackson] had taken notes of the debates⋯ in addition to his formal minutes, and it is possible that he somewhat neglected his official duties in order to make his private records more complete.")
159. Adams, supra note 71, at 426 ("[Jackson] told me that he had taken extensive minutes of the debates in the Convention, but, at the request of President Washington, had promised they should never be published during his own life, which he supposed had been a loss to him of many thousand dollars.").
160. See James Madison, Preface to Debates in the Convention of 1787, in 3 RECORDS, supra note 17, at 539, 550 (Madison's own note taking in the Convention is described as follows: "In pursuance of the task I had assumed I chose a seat in front of the presiding member with the other members, on my right & left hand. In this favorable position for hearing all that passed, I noted in terms legible & in abreviations [sic] & marks intelligible to myself what was read from the Chair or spoken by the members; and losing not a moment unnecessarily between the adjournment & reassembling of the Convention I was enabled to write out my daily notes during the seesion [sic] or within a few finishing days after its close in the extent and form preserved in my own hand on my files.").
161. See CARL VAN DOREN, THE GREAT REHEARSAL: THE STORY OF THE MAKING AND RATIFYING OF THE CONSTITUTION OF THE UNITED STATES 30 (1948) (noting that "Madison seems to have been regarded by his fellow delegates as a licensed private recorder of their proceedings").
162. See Farrand, supra note 68, at xv-xix.
163. See id. at xv.
164. Id. at xviii nn.20 & 23; see also supra note 63.
165. Farrand, supra note 68, at xvi-xviii.
166. See id. at xvi-xix.
167. For example, one instance in which Madison substituted the Convention's Journal's erroneous record for his own is detailed in Convention's Journal (July 20,1787), in 2 RECORDS, supra note 17, at 61 n.3,62. The error in the Convention's Journal resulted from a confused recordation of the votes by Secretary Jackson, which Adams had trouble making sense of when he brought the journal to print in 1818.
168. This is surprising, since Madison thought Yates' journal was "very erroneous." Farrand, supra note 68, at xviii & n.21.
169. See supra text accompanying note 62 (containing Madison's note to himself).
170. These five powers are those from the one starting with, "That Funds which shall be appropriated for payment of public Creditors" to the last power, "To regulate Stages on the post-roads.
171. See Convention's Journal, supra note 60, at 131.
172. James Madison's Journal, supra note 55, at 326-28.
173. It is possible to tell from Madison's Journal that the proposals that appear first in the Convention's Journal are Madison's.
174. The proposals in Madison's Edited Journal also start with quotation marks, which may suggest that they were copied from some other source.
175. See James Madison's Edited Journal, m 2 RECORDS, supra note 17, at 324 n.3 (reporting the divergence between Madison's Edited Journal and Madison's Journal and suggesting that the revision was taken from the Convention's Journal).
176. See infra App.
177. Even if one assumes that Madison carefully compared his original notes with the Convention's Journal, and noticed that the Convention's Journal omitted the Missing Power, the evidence above would still suggest that not much independent weight should be given to Madison's Edited Journal. The evidence shows that in every case of divergence between his original notes and the Convention's Journal, Madison preferred the version in the Convention's Journal to his own, rather than sometimes prefer one and sometimes the other. Had he switched back and forth, it would tend to suggest deliberation and the retention of some actual memory, as opposed to a decision to always prefer one source to the other in cases of conflict.
178. See supra note 73 (noting that Madison used to transcribe events in abbreviated form in the Convention).
179. See supra note 84 and accompanying text.
180. For example, perhaps Secretary Jackson was distracted for a moment and skipped one of Madison's proposed powers. Perhaps Madison handed Jackson the list of the powers he proposed, and Jackson skipped the Missing Power, which seemed similar to the one preceding it (both start with "to secure to" and end with "for a limited time"). Also, one might conjecture that Madison skipped reading that power. Although these and many other conjectures are possible, none is supported by evidence.
181. Both the IP Clause and the Missing Power use the verb "to secure" and the terms "inventors" and "for a limited time," whereas Pinckney's proposal for a congressional patent power uses the verb "to grant," does not use an explicit time limitation, and does not use "inventors."
182. The Supreme Court explicitly denied certiorari on this question a few years ago.
183. See Eldred v. Ashcroft, 534 U.S. 1160 (2002) (denying certiorari specifically on the question of whether the progress language in the Clause limits Congress's IP power).
184. See Oliar, supra note 6, at 1810-16.
185. See id.
186. See id. at 1789 n.98.
187. The term "encouragements" describes monetary payments and nonmonetary honors that the American states, and many manufacturing countries, would contemporaneously give to reward industry and invention. Present day equivalents would include the Nobel Prize or U.S. government grants given by the National Science Foundation and the National Endowment for the Arts.
188. See Oliar, supra note 6, at 1789 tbl. 1.
189. See id. at 1805-10.
190. Note, for example, the similarity between "promote the progress" in the Progress Clause and "encourage ⋯ the advancement" in the ends part of Madison's Encouragements Power. Note also the similarity between "science and useful arts" in the Progress Clause and "the arts and sciences" in the ends part of Pinckney's Education Power. For a more detailed tracking of the language in Madison's and Pinckney's relevant proposals and the Progress Clause
191. see id. at 1788-1810. As mentioned earlier, my prior work assumed that Madison made a patent power proposal, an assumption I justify in Part II.
192. Different from such language, there are external sources that shed light on the Framers' and ratifiers' attitudes toward intellectual property and the IP Clause, the most relevant of which are Madison's views in The Federalist.
193. See THE FEDERALIST No. 43 (James Madison) (suggesting that the common law recognizes the rights of authors and inventors, noting that such rights further the common good, and justifying the national power in terms of a need for effective protection).
194. Indeed, the literature has shown awareness of only subsets of these eight powers.
195. See, e.g., LYMAN RAY PATTERSON, COPYRIGHT IN HISTORICAL PERSPECTIVE 192-93 (1968) (simply mentioning all powers but for Madison's Patent Power and Pinckney's Encouragements Power as of "particular interest")
196. Fenning, supra note 34 (noting Pinckney's Patent and Copyright Powers, Madison's Patent and Copyright Power, and Madison's Encouragements Power)
197. Ginsburg, supra note 5, at 999 (noting Madison's Copyright and Encouragements Powers as origins of the copyright portion of the Clause); Craig Joyce, "A Curious Chapter in the History of Judicature": Wheaton v. Peters and the Rest of the Story (of Copyright m the New Republic), 42 HOUS. L REV. 325, 336 & n.29 (2005) (viewing the patent and copyright powers as the sources of the Clause)
198. Lyman Ray Patterson & Craig Joyce, Monopolizing the Law: The Scope ofCopyritfa. Protection for Law Reports and Statutory Compilations, 36 UCLA L REV. 719, 788 n.231 (1989) (noting Madison's and Pinckney's Copyright Powers as the sources of the copyright portion of the Clause)
199. Malla Pollack, l/nconsticuriona! Incontestability? The Intersecticm of the InteUectud Property and Commerce Clauses of the Constitution: Beyond a Critique of Shakespeare Co. v. Silstar Corp., 18 SEATTLEU. L REV. 259,275 & n.96 (1995) (analyzing Pinckney's Patent and Copyright Powers and Madison's Copyright Power as the origins of the Clause)
200. Schwartz & Treanor, supra note 5, at 2375 (suggesting that whereas the Exclusive Rights Clause draws on Madison's and Pinckney's Patent and Copyright Powers, the Progress Clause emerged first in the Committee of Eleven)
201. id. at 2375, 2381 (noting Pinckney's Patent and Copyright Powers and Madison's Copyright Power as the sources of the Clause, expressing doubt on whether Madison's Patent Power was a source of the Clause, and rejecting Madison's Encouragements Power as a possible source of the IP Clause). Even the most sophisticated analysis of the Convention's record to date, which noticed Madison's Encouragements Power as a source of the Clause, did not think that Madison's and Pinckney's Education Powers were relevant.
202. See supra notes 51-52 and accompanying text.
203. See James Madison's Journal (July 13,1787), m 1 RECORDS, supra note 17, at 605 ("[H]e could not agree that property was the sole or the primary object of Governt. & Society. The cultivation & improvement of the human mind was the most noble object").
204. See BUGBEE, supra note 34, at 95-99.
205. see generally Frank D. Prager, The Steamboat Pioneers Before the Founding Fathers, 37 J. PAT. OFF. SOC'Y 486 (1955).
206. Eldred v. Ashcroft, 537 U.S. 186 (2003), gave much weight to the Framers' intent and to the Clause's original understanding. For intent
207. see id. at 202 n.8 (relying on Madison's and other Framers' views of Congress's power under the Clause).
208. id. at 194, 196 n.3, 197, 200, 204 & n.8, 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).
209. 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").
210. 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. United States, 272 U.S. 52,175 (1926))).
211. id. at 222 ("[a]s we read the Framers' instruction").
212. 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 concluding that "history, in this case, does not provide the 'volume of logic'⋯necessary to the sustain the Sonny Bono Act's constitutionality").
213. id. at 246-48 (Breyer, J., dissenting) (reviewing the founders' objectives in the Clause and their abhorrence of monopolies). The justices similarly paid much attention to the original meaning of the text.
214. See, e.g., id. at 199 (majority opinion) (looking at dictionaries contemporaneous with the nation's founding in order to understand the meaning of the word "limited" in the Clause).
215. id. at 229-31 (Stevens, J., dissenting) (studying the early U.S. patent and copyright systems extensively).
216. id. at 245-48 (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, and consulting a 1773 dictionary to interpret "limited").
217. Recent years have seen a boom in historical intellectual property scholarship.
218. See, e.g., BEN-ATAR, supra note 5.
219. B. ZORINA KHAN, THE DEMOCRATIZATION OF INVENTION: PATENTS AND COPYRIGHTS IN AMERICAN ECONOMIC DEVELOPMENT, 1790-1920 (2005)
220. WALTERSCHEID, supra note 34.
221. Oren Bracha, The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values m Early American Copyright, 118 YALE LJ. 186 (2008)
222. Heald & Sherry, supra note 5.
223. Adam Mossoff, Patents as Constitutional Private Property: The Historical Protection of Patents Under die Takings Clause, 87 B.U. L REV. 689 (2007)
224. Thomas B. Nachbar, Intellectual Propert? and Constitutional Norms, 104 COLUM. L REV. 272 (2004)
225. Ochoa & Rose, supra note 65.
226. Malla Pollack, What Is Congress Supposed to Promote?: Defining "Progress" in Article 1, Section 8, Clause 8 of the United States Constitution, or Introducing the Progress Clause, 80 NEB. L. REV. 754 (2001).
227. Schwartz & Treanor, supra note 5.
228. Symposium, Intellectual Property at a Crossroads: The Use of the Past in Intellectual Property Jurisprudence, 38 LOY. L.A. L. REV. 1 (2004).
229. See supra note 5.
230. State St. Bank & Trust Co. v. Signature Fin. Group, Inc., 149 F.3d 1368,1375 (Fed. Cir. 1998), abrogated on other grounds by In re Bilski, 545 F.3d 943 (Fed.Cir. 2008).
231. U.S. Patent No. 5,960,411 (filed September 12,1997). Many of the claims of this patent have been recently rejected.
232. See U.S. Pat & Trademark Office, Office Action in Ex Parte Reexamination (No. 90/007,946), available at http://pub.bna.com/ptcj/PTOreexam. pdf (rejecting claims 1-5 and 11-26).
233. See, e.g., U.S. Patent No. 6,567,790 (filed Dec. 1, 1999) (describing a method for minimizing tax liability).
234. See, e.g., Adam B. Jaffe, The U.S. Patent System in Transition: Policy Innovation and the Innovation Process, 29 RES. POL'Y 531 (2000)
235. Jay P. Kesan, Carrots and Sticks to Create a Better Patent System, 17 BERKELEY TECH. L.J. 763 (2002)
236. Robert P. Merges, As Man? as Six Impossible Patents Before Breakfast: Property Rights for Business Concepts and Patent System Reform, 14 BERKELEY TECH. L.J. 577(1999).
237. See 35 U.S.C. § 273 (2006).
238. See, e.g., H.R. 2584,111th Cong. (2009).
239. S. 506, 111th Cong. § 303 (2009).
240. H.R. 1265, 111th Cong. § 303 (2009).
241. See John R. Allison & Emerson H. Tiller, The Business Method Patent Myth, 18 BERKELEY TECH. L.J. 987 (2003) (arguing that the quality of those internet business method patents that were granted is no worse than that of other patents).
242. See Durham, supra note 5, at 1454-55 ("It is reasonable to conclude that industry is what the Framers intended to encourage by exclusive rights and that industry is what they meant by the 'useful arts.' There is no corresponding evidence that the Framers intended to encourage developments in business methodsIn fact, there is no evidence that they viewed such endeavors as subject to improvement by 'inventors.' In all likelihood, it did not occur to the Framers to include such things in the patent system." (citation omitted)).
243. Robert A. Kreiss, Patent Protection for Computer Programs and Mathematical Algorithms: The Constitutional Limitations on Patentable Subject Matter, 29 N.M. L. REV. 31, 85-86 (1999) (arguing that "business systems are perceived to be far outside the bounds of the 'useful arts'").
244. Malta Pollack, The Multiple Unconstitutionality of Business Method Patents: Common Sense, Congressiona! Consideration, and Constitutional History, 28 RUTGERS COMPUTER & TECH. L.J. 61, 119 (2002) ('"Useful arts' does not include methods of commerce; business method patents are therefore unconstitutional.")
245. John R. Thomas, The Patenting of the Liberal Professions, 40 B.C. L REV. 1139,1164 (1999) ("We have good reason to doubt whether [business method patents] lie within the 'useful Arts,' the constitutional stricture concerning patentable subject matter. The sparse materials we possess regarding this term suggest that it is unlikely the Framers saw every created thing as encompassed within it." (citation omitted)).
246. See eBay, Inc. v. MercExchange, LLC, 547 U.S. 388,397 (2006) (Kennedy, J., concurring, joined by Stevens, Souter, & Breyer, JJ.) (commenting on the "potential vagueness and suspect validity" of some business method patents).
247. See Excel Commc'ns, Inc. v. AT&T Corp., 528 U.S. 946,946-47 (1999) ("The importance of the question presented in this certiorari petition makes it appropriate to reiterate the fact that the denial of the petition does not constitute a ruling on the merits.").
248. See In re Bilski, 545 F.3d 943 (Fed. Cir. 2008), cert, granted, Bilski v. Doll, 129 S. Ct. 2735 (U.S.June 1, 2009) (No. 08-964).
249. Id. at 998 (Mayer, J., dissenting).
250. 4 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 224 (Worthington Chauncey Ford ed., 1906).
251. See infra note 214 and accompanying text.
252. See Act of Nov. 19, 1785, reprinted m COPYRIGHT OFFICE, LIBRARY OF CONGRESS, COPYRIGHT ENACTMENTS 1783-1900, at 23,23 (1900) [hereinafter COPYRIGHT ENACTMENTS].
253. See 1 JOURNAL OF THE FIRST SESSION OF THE SENATE OF THE UNITED STATES 103 (Washington, Gales & Seaton 1820) (recording Washington's address on Jan. 8,1790).
254. The fact that Congress rejected several means Washington espoused-university and encouragements-does not affect the argument in the text, which relates to Washington's statement of ends.
255. See 3 annals of cong. 393-94 (1792) ("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⋯ The encouragement which the General Government might give to the fine arts, to commerce, to manufactures, and agriculture, might, if judiciously applied, redound to the honor of Congress, and the splendor, magnificence, and real advantage of the United States; but the 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." (statement of Mr. Page)).
256. See James Madison, First Inaugural Address (Mar. 4,1809), in 8 THE WRITINGS OF J AMES MADISON, supra note 39, at 47,47.
257. See Oliar, supra note 6, at 1795-810 (elaborating on this argument).
258. Saying so is not to advocate that Congress or the Patent and Trademark Office should actually issue business method patents, or if so, on what terms. These questions are beyond the present constitutional inquiry.
259. 35 U.S.C. § 101 (2006).
260. 447 U.S. 303 (1980).
261. Id. at 309.
262. Id.
263. Id. at 307 ("The question before us in this case is a narrow one of statutory interpretation requiring us to construe 35 U.S.C. § 101.").
264. 548 U.S. 124 (2006).
265. See id. at 126 (Breyer, J., dissenting, joined by Stevens and Souter, JJ.) (explaining that "the reason for the exclusion [of laws of nature from patentable subject matter] is that sometimes too much patent protection can impede rather than 'promote the Progress of Science and useful Arts, the constitutional objective of patent and copyright protection'" (quoting U.S. CONST, art. I, § 8, cl. 8)).
266. See, e.g., Quanta Computer, Inc. v. LG Electronics, Inc., 128 S. Ct. 2109 (2008) (reversing the Federal Circuit and limiting patent owners' ability to control downstream patent use); KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398 (2007) (rejecting and invigorating die Federal Circuit's standard for nonobviousness, a bar to patentability).
267. Medlmmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) (reversing Federal Circuit doctrine that limited licensees' ability to challenge die validity or enforceability of the underlying patents).
268. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) (rejecting the Federal Circuit's rule that courts should issue injunctions once infringement is found).
269. In addition to Labcorp, five justices asked questions about the patentability of computer software during oral argument in Microsoft v. AT&T, even though the issue was not before the Court.
270. See 35 U.S.C. § 100 (2006) (defining "invention" to include "discovery").
271. See, e.g., National Science Foundation, http://www.nsf.gov/about (last visited Aug. 3, 2009) ("The National Science Foundation (NSF) is an independent federal agency created by Congress in 1950 'to promote the progress of science'⋯")
272. National Endowment for the Arts, http://www.nea.gov/ recovery/index.html (last visited Aug. 3, 2009) (noting that "[t]he National Endowment for die Arts is uniquely positioned to fund arts projects and activities that preserve jobs in the nonprofit arts sector threatened by declines in philanthropic and other support during the current economic downturn")
273. see also National Endowment for the Humanities, www.neh.gov/whoweare/ overview.html (last visited Aug. 3,2009) (stating that the National Endowment for the Humanities gives grants to individuals and institutions to "strengthen teaching and learning in the humanities in schools and colleges across die nation" and "facilitate research and original scholarship").
274. National Institutes of Health, http://www. nih.gov/about/#mission (last visited Aug. 3, 2009) ("The goals of the [National Institutes of Health] are⋯ [to] foster fundamental creative discoveries").
275. Indeed, there is some evidence to suggest a contemporaneous concern about governmentalabuse of such power to spend.
276. See, e.g., 3 ANNALS OF CONG. 393-94 (1792) ("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.
277. See supra notes 121-122,124-127 and accompanying text (noting contemporaneous references to the goals of the Clause and mentioning the promotion of agriculture among them).
278. See,e.g.,THOMASMAWEETAL,EVERYMANHlsC)WNGARDENER349-50(llthed. 1787) ("Budding may now be performed in apricots, peaches, and nectarines; plums, cherries and pears.").
279. See, e.g., SIMON BAATZ, "VENERATE THE PLOW": A HISTORY OF THE PHILADELPHIA SOCIETY FOR PROMOTING AGRICULTURE 1785-1985, at 3 (1985) ("[I]n 1784, a small circle of Philadelphians discussed the possibility of establishing an agricultural society. The idea was not new; there was a committee of the American Philosophical Society in the city which reported regularly on agricultural improvements at meetings of the Society.")
280. id. at 4, 6 (suggesting that four of the founding members of the Philadelphia Society for Promoting Agriculture signed the Declaration of Independence and four participated in the Convention, and that in 1785 George Washington joined as an honorary member and Benjamin Franklin joined as a resident member)
281. id. at 6 (mentioning sister scientific and agricultural societies: the South Carolina Society of Agriculture, the Society for Promoting Arts, Manufactures and Agriculture in Connecticut, the Agricultural Society of New York, the Agricultural Society of the Province of New Brunswick, and the Burlington County Society for the Promotion of Agriculture and Domestic Manufactures).
282. CONWAY ZIRKLE, THE BEGINNINGS OF PLANT HYBRIDIZATION 144-49 (1935) (reviewing the activities of John Bartram, 1699-1777, who established a botanic garden in Philadelphia, imported new and exotic species from abroad, was an intimate friend of Benjamin Franklin, and made experiments in hybridization such as one in which he "obtained curious mixed Colours in flowers never known before").
283. It is probably so respecting members of Congress in 1930.
284. See COMM. ON PATENTS, REPORT TO ACCOMPANY S. 4015, S. REP. No. 71-315, at 6 (1930) ("There can be no doubt that the grant of plant patents constitutes a promotion of'the progress of science and useful arts'...").
285. See 35 U.S.C. §§ 161-164 (2006).
286. See 7 U.S.C. §§ 2321-2582 (2006).
287. See J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int'l, 534 U.S. 124, 145 (2001) (holding that newly developed plant breeds are patentable subject matter).
288. See Glenn E. Bugos 6k Daniel J. Kevles, Plants as Intellectual Property: American Practice, Law, and Policy in World Context, 7 OSIRIS 75, 78-84 (2d Ser. 1992).
289. See Harold C. Thome, Relation of Patent Law to Natural Products, 6 J. PAT. OFF. SOC'Y 23 (1923) (mentioning attempts to obtain legal protection but suggesting that the desired protection cannot be granted under the IP Clause as interpreted by courts).
290. See COMM. ON PATENTS, REPORT TO ACCOMPANY S. 4015, S. REP. NO. 71-315, at 6 (1930) ("The committee is of the opinion after careful consideration that the amendments to the patent laws proposed by the bill fall within the legislative power of Congress under [the IP Clause.]").
291. See id. at 7-8 (suggesting that Congress has the power to grant patents for plants in which human intervention is very minimal-probably not much more than plucking-because one major meaning of the word "inventor" at the time of the founding was discoverer or finder, even though that meaning became archaic by 1930). True, the report first finds the bill constitutional by making a make vs. discover distinction and suggesting that patenting under the bill requires human agency.
292. see id. at 6-7, but it later shifts to the aforementioned alternative ground.
293. One may argue that the fact that Congress considered but eventually did not allow for patents of importation (given to the first to import a technology not previously known domestically) in the first patent bill tends to show that the natural products doctrine is constitutionally mandated. However, it is not entirely clear why patents of importation were rejected. Although constitutional objections were mentioned, the fact that George Washington urged Congress publicly to grant them and that the first patent bill initially provided for them suggest that this was not a universal belief. Also, non-constitutional reasons were mentioned as well (such as the difficulty of drafting appropriate legislation and the desire to allow unencumbered domestic use of foreign technology). Even assuming that constitutional concerns were primary, these seem to have related to the nature of the patentee (i.e. importer as different from the constitutional requirement of inventor/discoverer) rather than the nature of the patent (whether it resulted from a man-made invention or a discovery of a preexisting natural product or principle, a distinction underlying the products of nature doctrine).
294. See WALTERSCHEID, supra note 34, at 313-27.
295. See Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340 (1991).
296. See id. at 363-64.
297. See, e.g., Emerson v. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845) ("A man has a right to the copy-right of a map of a state or country, which he has surveyed or caused to be compiled from existing materials, at his own expense, or skill, or labor, or money. Another man may publish another map of the same state or country, by using die like means or materials, and the like skill, labor and expense. But then he has no right to publish a map taken substantially and designedly from the map of the other person, without any such exercise of skill, or labor, or expense.").
298. To be sure, there are differences between copyright law and patent law, the most significant of which is that copyright doctrine protects only expression and allows for independent creation by third parties.
299. Feist, 499 U.S. at 347 ("The distinction is one between creation and discovery⋯.").
300. Diamond v. Qiakrabarty, 447 U.S. 303, 309 ("Congress intended statutory subject matter to 'include anything under the sun that is made by mart'⋯ Thus, a new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter⋯ Such discoveries are 'manifestations of⋯ ure⋯."' (quoting S. REP. No. 82-1979, at 5 (1952), and H.R. REP. NO. 82-1923, at 6 (1952)).
301. Feist, 499 U.S. at 346 ("Originality is a constitutional requirement.").
302. See Council Directive No. 96/9,1996 O.J. (L 77) 20.
303. See Yochai Benkler, Constitutional Bounds of Database Protection: The Role of Judicial Review in the Creation and Definition of Private Rights in Information, 15 BERKELEY TECH. LJ. 535,545, 548 (2000)
304. see also generally Symposium, The Constitutionality of Protecting Factual Compilations, 28 U. DAYTON L REV. 143 (2002). For an analysis of the ways in which the IP Clause might restrict congressional action under the commerce clause, see generally Ebtan Oliar, Resolving Conflicts Among Congress's Powers Regarding Statutes' Constitutionality: The Case of Ana-Bootlegging Statutes, 30 COLUM. J.L & ARTS 467 (2007).
305. The analysis does not reflect on whether protecting products of nature and unoriginal factual compilations-and if so on what terms-would be good policy. These questions are beyond the present constitutional inquiry.
306. See RICHARDC. DEWOLF, AN OUTLINE OF COPYRIGHT LAW 15 (1925).
307. Id. De Wolf was not the first to advance a disjunctive reading.
308. 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.").
309. 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)
310. see also Karl B. Lutz, Are the Courts Carrying Out Constitutional Public Policy on Patents?, 34 J. PAT. OFF. SOCY 766, 789 (1952) ("This is indeed a perversion of the Constitution⋯. If they were really interested in ascertaining the original meaning of the Constitutional clause why did they not take a serious look into history? Had they done so they would have found that the word 'science' belongs with the copyright clause⋯.").
311. See, e.g., 1 DONALD S. CHISUM, CHISUM ON PATENTS § 1.01, at 1-6 (Mathew Bender & Co. ed., 2004)("The Constitution and the statutes limit patents to 'useful arts'") ; id. § 2 ("The clause intermixes copyright and patent concepts. The patent concepts are 'useful arts', 'inventors' and 'discoveries.'")
312. 1 MELVILLE B. NlMMER & DAVID NlMMER, NlMMER ON COPYRIGHT § 1.03 (Mathew Bender ed., 2008) (generally accepting the exclusive association of "science," "authors," and "writings")
313. L RAY PATTERSON & STANLEY W. LlNDBERG, THE NATURE OF COPYRIGHT: A LAW OF USERS' RIGHTS 48 (1991) ("Since the intellectual-property clause also empowers Congress to grant patents, one must read the passage distributively")
314. WALTERSCHEID,supra note 34, at 116-18
315. id. at 122 (finding a "careful dichotomy between the patent and copyright provisions of the clause")
316. 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)
317. Giles S. Rich, Principles of Patentability, 28 GEO. WASH. L REV. 393 (1960)
318. Lawrence B. Solum, Congress's Power to Promote the Progress of Science: Eldred v. Ashcroft, 36 LOY. L.A. L. REV. 1, 11-12(2002).
319. See H. COMM. ON THE JUDICIARY, 82D CONG., REVISION OF TITLE 35, UNITED STATES CODE "PATENTS" 4 (Comm. Print 1952)
320. S. COMM. ON THE JUDICIARY, 82D CONG., REVISION OF TITLE 35, UNITED STATES CODE, 3 (Comm. Print 1952).
321. See, e.g., Eldred v. Ashcroft, 537 U.S. 186, 192-93 (2003) ("The [Clause] provides as to copyrights: 'Congress shall have Power⋯[t]o promote the Progress of Science⋯ by securing [to Authors] for limited Times⋯ the exclusive Right to their⋯ Writings.'" (quoting U.S. CONST, art. I, § 8, cl. 8)).
322. Graham v.John Deere Co. ofKansas City, 383 US. l,5&n.l (1966).
323. InreComiskey, 554 F.3d967, 976 (Fed. Cir. 2009) ("[The IP Clause] limit[s] the subject matter eligible for patent protection to the 'useful Arts."').
324. De Wolf originally termed it a "balanced style of composition so much used in the days of the colonial worthies." DE WOLF, supra note 164, at 15. Lutz termed it a "balanced sentence" and argued that it was "much used by sixteenth century writers." Lutz, supra note 166.
325. see also WALTERSCHEID, supra note 34, at 116 (describing the Clause as "a balanced style of composition much favored in the eighteenth century").
326. Robert I. Coulter, The Field of the Statutory Useful Arts (Part 11), 34 J. PAT. OFF. SOC'Y 487,491 (1952) (claiming the Clause to be an example of the "so-called 'balanced sentence,"' and to have "followed 18th century practice").
327. Arthur H. Seidel, The Constitution and a Standard of Patentability, 48 J. PAT. OFF. SOC'Y 5,9 n.10 (1966) (claiming the Clause to be a "balanced sentence")
328. supra notes 165-167 (containing quotes basing the disjunctive reading on contemporaneous historical language-use grounds).
329. There are three junctions on this graph. In each junction either element or both can be chosen. Thus there are 3', or 27 different ways of reading the Clause.
330. See Solum, supra note 167, at 11-12 & tbl.2 (using a similar figure).
331. See supra note 116.
332. See, e.g., Eldred, 537 U.S. at 192-93 ("The Copyright and Patent Clause of the Constitution, Art. I, § 8, cl. 8, provides as to copyrights: 'Congress shall have Power⋯ [t]o promote the Progress of Science⋯ by securing [to Authors] for limited Times⋯ the exclusive Right to their⋯ Writings."').
333. Graham, 383 U.S. at 5 (noting that "the federal patent power stems from a specific constitutional provision which authorizes the Congress 'To promote the Progress of⋯ useful Arts, by securing for limited Times to⋯ Inventors the exclusive Right to their⋯ Discoveries."' (citation omitted) (quoting U.S. CONST, art. I, § 8, cl. 8)).
334. id. at 5 n.l ("The provision appears in the Constitution spliced together with the copyright provision, which we omit as not relevant here.").
335. 545 FJd 943 (Fed. Cir. 2008), cert, granted, Bilski v. Doll, 129 S. Ct. 2735 (U.S. June 1, 2009) (No. 08-964).
336. See id. at 1001-02 (2008) (Mayer, J., dissenting) ("What the framers described as 'useful arts,' we in modem times call 'technology.' Therefore, by mandating that patents advance the useful arts, '[t]he Constitution explicitly limited patentability to⋯ "the process today called technological innovation.'" ⋯We stated that patentable processes must 'be in the technological arts so as to be in consonance with the Constitutional purpose to promote the progress of "useful arts."' Business method patents do not promote the 'useful arts' because they are not directed to any technological or scientific innovation." (citations omitted and emphasis added)).
337. See Brief of Amid Curiae Ten Law Professors In Support of Appellee Director of the United States Patent and Trademark Office at *7, Bisk, 545 F.3d 943 (No. 2007-1130), 2008 WL1842283.
338. One may argue that the word "respective" suggests that the Exclusive Rights Clause should be read disjunctively. This would have been the case had the Clause used "respectively." The word "respective, " however, may plausibly express an intent to protect the writings and discoveries of authors as well as those of inventors.
339. A contemporaneous public expression supports the argument that the Clause could have been read in a way that applies the progress of both science and useful arts to each of the patent and copyright systems.
340. See 3 ANNALS OF CONG. 393-94 (1792) (suggesting in Congress that "even to encourage learning and useful arts, the granting of patents is the extent of their power").
341. The evidence below should not be taken to suggest that the clause does not empower Congress in the two ways the disjunctive reading claims it does. Rather, it tends to refute the disjunctive reading by showing that these were not the only ways in which the Clause could be read at the time of the framing.
342. Samuel Johnson's 1783 dictionary defines the word "science" by the use of the word "art," and the word "art" by the use of the word "science.
343. See SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (London, W. Strahan et al. 1783).
344. See MASS. CONST. 1780, ch. 5, § 2, reprinted m 3 THE FOUNDERS' CONSTITUTION, supra note 66, at 39,39.
345. see also infra note 214 and accompanying text.
346. It spoke of the "promotion of agriculture, arts, sciences, commerce, trades, manufactures, and a natural history of the country." I have designated these terms as "useful arts" (A) or "science" (S) according to conventional wisdom, leading to the following sequence: A, S, S, A, A, A, S. One may disagree with the classification of the terms above as either "art" or "science," which only further proves the point that there is no clear demarcation.
347. See infra note 214.
348. See generally Solum, supra note 167, at 47-53 and references therein.
349. See Act of Nov. 19,1785, reprinted m COPYRIGHT ENACTMENTS, supra note 123, at 23, 23.
350. See Copyright Act of 1802, ch. 36, 2 Stat. 171, 171 (1802) (repealed 1831) (extending copyright protection "to the arts of designing, engraving, and etching historical and other prints").
351. See id. §2.
352. See Copyright Act of 1831 ,ch. 16, §§1,2,16,4 Stat. 436,436,439 (1831) (repealed 1870).
353. See Copyright Act of 1870, ch. 230, §86, 16 Stat. 198, 212 (1870) (amended 1905) (granting protection to any "author, inventor, designer, or proprietor" of protected works).
354. id. § 88 (granting copyright renewal rights to "the author, inventor or designer").
355. See Act of Mar. 3,1905, ch. 1432, § 4952,33 Stat. 1000,1000 ("An amendatory act relating to the protection of books in foreign languages first published abroad.").
356. See Act of Nov. 19,1785, reprinted in COPYRIGHT ENACTMENTS, supra note 123, at 23,23.
357. 1 ANNALSOFCONG. 143 (JosephGalesed., 1789).
358. Id. at 170-71. Churchman petitioned "that a law may pass for vesting in the petitioner, his heirs and assigns, an exclusive right of vending spheres, hemispheres, maps, charts, and tables, on his principles of magnetism, throughout the United States.
359. Id. at 143. Churchman's protection was in copyright: he got the same protection given to David Ramsay for his two books on the American Revolution.
360. Id. at 173.
361. See Patent Bill, H.R. 41 § 2 (Feb. 16, 1790), reprinted m 6 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF AMERICA 1628 (Carolie Bangs Bickford & Helen E. Veit eds., 1986) (requiring patentees to deliver a written specification that will "enable a workman or other person skilled in the art, science or manufacture whereof it is a branch, or wherewith it may be nearest connected, to make, construct or use the same"). The House struck out "science.
362. See id. at 1628 n. 19.
363. See Patent Act of 1793, ch. 11, § 3, 1 Stat. 318, 321 (repealed 1836) (requiring patentees to deliver a written description of their inventions as "to enable any person skilled in the art or science, of which it is a branch, or with which it is most nearly connected, to make, compound, and use the same").
364. See Patent Act of 1836, ch. 357, § 6, 5 Stat. 117, 119 (repealed 1842) (requiring patentees to deliver a written description of their inventions "as to enable any person skilled in the art or science to which it appertains, or with which it is most nearly connected, to make, construct, compound, and use the same").
365. id. § 7 (relating to a patent examiner who has "knowledge and skill in the particular art,manufacture, or branch of science to which the alleged invention appertains").
366. See Patent Act of 1870, ch. 230, § 26, 16 Stat. 198, 201 (repealed 1952) (requiring patentees to file a writing description of their inventions "as to enable any person skilled in the art or science to which it appertains, or with which it is most nearly connected, to make, construct, compound, and use the same").
367. Moreover, the 1837 Patent Act had the word "science" in its title.
368. See Patent Act of 1837, ch. 45, 5 Stat. 191, 191 ("An Act in addition to the act to promote the progress of science and useful arts."). This title is clearly erroneous, since there was no such previous patent act. This fact, however, further cuts against the existence of a clear dichotomy between "science" and "arts."
369. 4 WILLIAM BLACKSTONE, COMMENTARIES. 159.
370. See James Madison's Journal (July 25,1787), m 2 RECORDS, supra note 17, at 108,113 ("Such is the nature of man, formed by his benevolent author no doubt for wise ends ⋯." (transcription of Gouverneur Morris's comments)).
371. see also John Dickinson, Draft on Taking Arms, in 2 JOURNALS OF THE CONTINENTAL CONGRESS 140 (Washington Chauncey Ford ed., 1905) (referring to God as "the Divine Author").
372. See Pinckney, supra note 29, at 106,122.
373. Grant v. Raymond, 31 U.S. (6 Pet.) 218, 241 (1832) (stating that "the settled purpose of the United States" was "to confer on the authors of useful inventions an exclusive right in their inventions for the time mentioned in their patent").
374. The Convention's records were published only in 1819.
375. See supra Part LB.
376. See ROBERT H. BORK, THE TEMPTING OF AMERICA 144 (1990) ("The search is not for a subjective intention. If someone found a letter from George Washington to Martha telling her that what he meant by the power to lay taxes was not what other people meant, that would not change our reading of the Constitution in the slightest. Nor would the subjective intentions of all the members of a ratifying convention alter anything. When lawmakers use words, the law diat results is what those words ordinarily mean.")
377. ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 17 (1997) ("[W]e do not really look for subjective legislative intent. We look for a sort of 'objectified' intent-the intent that a reasonable person would gather from the text of die law⋯ Government by unexpressed intent is⋯ tyrannical. It is die law that governs, not the intent of die lawgiver.")
378. Randy E Barnett, The Original Meaning of the Commerce Clause, 68 U. CHI. L REV. 101, 105-08 (2001).
379. 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), and references therein.
380. This fact was overlooked by previous students of the Clause.
381. See, e.g., PATTERSON, supra note 102, at 192 (explaining that "the copyright of die American states' statutes" was "ignored, in the subsequent development of copyright, to die extent that [it] became historical curiosit[y] for die purposes of copyright law").
382. Delaware was the only state that did not have a copyright statute.
383. See generally BUGBEE, supra note 34, at 84-124.
384. See Act of Mar. 26,1784, reprirudmCOPTOIGHT ENACTMENTS, sujira note 123, at 19, 21.
385. See Act of Oct. 1785, reprinted m COPYRIGHT ENACTMENTS, supra note 123, at 22.
386. See 24 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, at 326-27 (Gaillaid Hunt ed., 1922) ("Resolved, That it be recommended to die several states, to secure to the audiors or publishers of any new books not hidierto printed, being citizens of die United States, and to dieir executors, administrators and assigns, die copyright of such books for a certain time, not less than fourteen years from die first publication; and to secure to the said audiors, if they shall survive the term first mentioned, and to their executors, administrators and assigns, die copyright of such books for another term of time not less than fourteen years, such copy or exclusive right of printing, publishing and vending die same, to be secured to the original authors, or publishers, their executors, administrators and assigns, by such laws and under restrictions as to the several states may seem proper.").
387. Among all the state copyright statutes, the terms "for a certain time" and "copyright" appear only in Pennsylvania's statute. Pennsylvania's statute probably drew most literally on the recommendation of the Continental Congress's committee on literary property.
388. See Act of Mar. 15, 1784, reprinted m COPYRIGHT ENACTMENTS, supra note 123, at 18.
389. See id. at 23 (emphases added). But see WALTERSCHEID, supra note 34, at 96-97 (suggesting that in proposing his Encouragements Power, Madison may have been influenced by an August 9,1787 address of Tench Coxe to the Pennsylvania Society for the Encouragement of Manufactures and the Useful Arts).
390. The term "rewards" appears in the copyright statutes of Maryland, Pennsylvania, and South Carolina, but in the sense of a third party's payment for inspection of records in the respective state's copyright registry.
391. See MASS. CONST, of 1780, ch. 5, § 2, reprinted m 3 THE FOUNDERS' CONSTITUnON, supra note 66, at 39,39. This similarity is demonstrated below by the use of emphases.
392. Both refer, for example, to freedom of the press, writ of habeas corpus, quartering of soldiers in times of peace, keeping armies in times of peace, die ability to hold only one U.S. office of trust at a time, and the keeping of the great seal by die head of the executive. Some of these proposals, however, were common in several of the state constitutions.
393. One can infer that they were coordinated because on August 18, 1787, they each proposed that the federal government should have power over patents, copyrights, education, encouragements, incorporation charters, and the seat of government-the first five being discussed for the first time in the Convention. Seminaries are also mentioned in a pamphlet Madison wrote in April 1787, just before die Convention, in which he detailed the vices of the Confederation tliat needed to be amended.
394. See James Madison, Vices of the Political System of the United States, in 9 THE PAPERS OF JAMES MADISON 345,345-58 (Robert A. Rutland et al. eds., 1975).
395. Section 44 of the Pennsylvania Constitution of 1776 suggests: "A school or schools shall be established in each county by the legislature, for the convenient instruction of youth, with such salaries to the masters paid by the public, as may enable them to instruct youth at low prices: And all useful learning shall be duly encouraged and promoted in one or more universities." PA. CONST. 1776, §44.
396. See Pinckney, supra note 29, at 122 (noting the Observations' mentioning of Pinckney's university proposal).
397. id. at 106 & n.l (noting that the Observations were published in New York no later than October 14,1787, and in South Carolina no later than November 29,1787).
398. See Statement of Roger Sherman (May 25, 1790), in 3 RECORDS, supra note 17, at 362, 362 (documenting a statement made at the House of Representatives on May 3, 1790, that the Convention had considered and rejected a suggestion to vest Congress with the power to establish a national university).
399. 3 ANNALS OF CONG. 393-94 (1792) (documenting a statement at the House of Representatives on February 7, 1792 that the Convention considered and rejected die grant of encouragements as means to promote progress in the arts and sciences).
400. H.R. MlSC. DOC. NO. 4-74, (1796), reprinted m 1 AMERICAN STATE PAPERS: CLASS X MISCELLANEOUS, at 140 (Washington, Gales & Seaton 1834) (reporting a committee's view that Congress does not have the constitutional power to grant encouragements).
401. See Letter From James Madison to Tench Coxe (Mar. 28, 1790), m 13 THE PAPERS OF JAMES MADISON 128,128 (Charles F. Hobson et al. eds., 1981) (suggesting the Clause prohibits Congress from giving encouragements to promote progress in the arts and sciences). Coxe was then acting as the equivalent of a present-day industry lobbyist, so that the content of his correspondence with Madison was not of a private nature.
402. That the Convention considered intellectual property powers is of course obvious from the face of the Clause, from the Observations, and from the copyright and patent acts of 1790, among others.
403. See Kesavan & Paulsen, supra note 204, at 1118-21,1183-1214 (suggesting that the Convention's debates are admissible evidence of the first degree in searching for the Constitution's original meaning and clearly useful when the text of the Constitution is ambiguous).
404. See supra note 5.
405. See supra note 106.
406. Some of the changes in Madison's Edited Journal may be in the handwriting of John C. Payne, to whom Madison dictated them.
407. See Max Farrand, Introduction to 1 RECORDS, supra note 17, at xviii n.23. None of the major students of the Convention's records could tell Madison's handwriting from Payne's.
408. See id. Even if the relevant revisions are in Payne's handwriting, the analysis in this Appendix would not change because it seeks to determine the origin of the text rather than the identity of its scribe.
409. MEJ stands for the contents of a sheet of paper Madison pasted over his original record.
410. See supra notes 63-64 and accompanying text. For printed versions of the three sources
411. see, for example, U.S. DEPT OF STATE, III DOCUMENTARY HISTORY OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 1786-1870, at 554-56 (1900) (containing MJ, MEJ)
412. Convention's Journal (Aug. 18,1787), supra note 53 (containing CJ). Table 2's content was taken from microfilm versions of the original handwritings which at a few places diverge from the printed sources.
413. The Appendix does not check the improbable hypotheses that MJ was copied from CJ or the other way around.
414. This is because the Appendix aims to find the reasons for the omission of the patent power from MEJ by examining textual indications surrounding that omission. As for the patent power itself, there are two competing hypotheses for its absence from MEJ-the conventional wisdom and the one advanced in this Article. We should therefore not count the patent power's absence from MEJ as evidence supporting only one of the hypotheses. Leaving the Missing Power out of the analysis clearly works against the argument advanced in this Article.
415. The text's length is 1,028 characters. There are fifty-two Is.
416. Some textual differences among the three texts have more probative value than others, which tends to favor this Article's argument.
417. X ∼B(n, p) notes that X has a binomial distribution with parameters n and p. This distribution serves to calculate the number of heads one would expect if she flipped a coin n times when the probability of getting heads (or "success") each time is p. The mean of X is pn and the variance is pn(l-p). The binomial model of Madison's copying necessarily involves an abstraction from reality's complexity. For example, using the binomial distribution, the test assumes that the copying of each letter correctly or incorrectly is a probabilistically independent event, namely that whether a letter was copied correctly does not depend on whether the letter before it was copied correctly, and that the probability of copying any letter correctly is the same. Although the model's assumptions are not perfectly true to reality, there is reason to believe diat they are not too far off. Running the test below by word counts rather than letter counts achieves largely the same result. In addition, binomial distribution was chosen as it is suitable for analyzing a series of finite binary events, and is suitable for discrete rather than continuous probability distributions.
418. One may get an intuitive understanding of the binomial model, and how it is used to estimate probabilities, by thinking about coin tosses. A coin can be characterized by the probability p of falling on "heads." If p = 0.6, then after tossing it a hundred times you would expect to get about sixty "heads." Alternatively, if you tossed a coin a hundred times and got twenty-five "heads," you would suggest that the chances that p = 0.6 are fairly low. Statistically, it is easy to assess the probability that a coin with a known p would return a certain "heads" count after a certain number of tosses. In our model, every letter copied into MEJ represents a coin toss, and the probability p is that of Madison copying that letter correctly from the source on which he based MEJ.
419. The test suggests that, under the assumptions above, this Article's position that Madison based his revisions on the text of the Convention's Journal is many orders of magnitude more likely than the conventional wisdom's position that he based it on his own journal. This is so because P (x = 90 | X ∼ B( 110,0.943) / P (x = 20 | X - B( 110,0.943) = 2.02 * 10λ85. It is true that, standing alone, a result of about 18 percent (i.e. 1 - 90/110) error (or occasional change) rate under this Article's alternative hypothesis is surprisingly high when one expects a rate of about 5.7 percent. However, an 82 percent (i.e. 1 - 20/110) error (or occasional change) rate, obtained under the conventional wisdom's hypothesis, is far more improbable. Theoretically, it is possible that a third hypothesis as to Madison's copying process would prove more likely than the two considered here, but none has thus far been raised (or seems reasonable in light of the data we have). Absent such a third hypothesis, one should prefer this Article's hypothesis to the conventional one.