The intellectual property clause's external limitations

Duke Law Journal

Volumn 61, Issue 7, 2012, Pages 1329-1414

  Fromer, Jeanne C ^a  

^a FORDHAM LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84864814736     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (283)

1. U.S. CONST. art. I, § 8, cl. 8. As a term, "the IP Clause" is inaccurate in at least two ways: neither the term "intellectual property" nor its abbreviation appears in the Clause itself, and the term encompasses trademark law, which is outside the Clause's scope. Dotan Oliar, Making Sense of the Intellectual Property Clause: Promotion of Progress as a Limitation on Congress's Intellectual Property Power, 94 GEO. L.J. 1771, 1773 n.1 (2006).
2. Edward C. Walterscheid, Inherent or Created Rights: Early Views on the Intellectual Property Clause, 19 HAMLINE L. REV. 81, 81 (1995).
3. see also infra text accompanying notes 131-38.
4. U.S. CONST. art. I, § 8, cl. 3.
5. I explore the implications of this Article's analysis for preemption of state laws in Jeanne C. Fromer, The Intellectual Property Clause's Preemptive Effect, in INTELLECTUAL PROPERTY AND THE COMMON LAW (Shyamkrishna Balganesh ed., forthcoming 2012).
6. See infra Part I.B.1.
7. See infra Part I.B.2.
8. See infra Part I.C.
9. See infra Part I.D.
10. See infra text accompanying notes 233-36.
11. See Thomas B. Nachbar, Intellectual Property and Constitutional Norms, 104 COLUM. L. REV. 272 (2004) ("The Intellectual Property Clause and its limits do not represent generally applicable constitutional norms and Congress may therefore legislate pursuant to the Commerce Clause without regard to the Intellectual Property Clause or its limits.").
12. cf. Edward C. Walterscheid, The Nature of the Intellectual Property Clause: A Study in Historical Perspective (pt. 1), 83 J. PAT. & TRADEMARK OFF. SOC'Y 763 (2001) [hereinafter Walterscheid, IP Clause] (arguing that the IP Clause "provides a broader scope of authority to Congress than merely the power to create patents and copyrights, while at the same time [containing] limitations on the patent and copyright power that are only in recent years coming to be understood").
13. Edward C. Walterscheid, To Promote the Progress of Science and Useful Arts: The Anatomy of a Congressional Power, 43 IDEA 1 (2002) [hereinafter Walterscheid, To Promote] (maintaining that the IP Clause's "'by securing' language is intended as an explanation of the generic grant of power set forth in the 'to promote' language as specifically including authority regarding patents and copyrights," but that "there are both express and inherent limitations in the Clause taken as a whole which qualify and limit the patent and copyright power of Congress[,] . . . . [and that i]n particular, the introductory language 'to promote' restrains such power").
14. Lawrence B. Solum, Congress's Power To Promote the Progress of Science: Eldred v. Ashcroft, 36 LOY. L.A. L. REV. 1, 11 (2002).
15. see also Dotan Oliar, The (Constitutional) Convention on IP: A New Reading, 57 UCLA L. REV. 421, 423 (2009) (characterizing his own previous work on the IP Clause as "ma[king] one major argument": that"[t]he Framers intended the progress language in the Clause-'to promote the progress of science and useful art'-to limit Congress's power to grant IP rights").
16. See, e.g., Rochelle Cooper Dreyfuss, A Wiseguy's Approach to Information Products: Muscling Copyright and Patent into a Unitary Theory of Intellectual Property, 1992 SUP. CT. REV. 195, 230 ("Restrictions on constitutional grants of legislative power, such as the Copyright Clause, would be meaningless if Congress could evade them simply by announcing that it was acting under some broader authority.").
17. Malla Pollack, The Right To Know?: Delimiting Database Protection at the Juncture of the Commerce Clause, the Intellectual Property Clause, and the First Amendment, 17 CARDOZO ARTS & ENT. L.J. 47, 60 (1999) ("Accepting that Congress may not do an end run around a limitation in one clause of the Constitution by invoking a more general clause, Congress may not grant (at least some types of) exclusive rights to something close to, but not quite, the writings of authors or the discoveries of inventors.").
18. 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. L.J. 535, 538-46 (2000).
19. William Patry, The Enumerated Powers Doctrine and Intellectual Property: An Imminent Constitutional Collision, 67 GEO. WASH. L. REV. 359, 364-66 (1999).
20. 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, 1160 (emphasis omitted).
21. See, e.g., Eldred v. Ashcroft, 537 U.S. 186, 242-67 (2003) (Breyer, J., dissenting) (arguing that the IP Clause limits congressional power based on the history and text of the IP Clause and policy considerations).
22. JAMES BOYLE, THE PUBLIC DOMAIN: ENCLOSING THE COMMONS OF THE MIND 170, 208, 210 (2008) (arguing, after considering the constitutional text, "Jeffersonian ideals," and policy concerns, that the IP Clause limits congressional power).
23. WILLIAM PATRY, MORAL PANICS AND THE COPYRIGHT WARS 123 (2009) ("The Constitution is quite clear that Congress can only grant copyright to promote the progress of science, and thus this 'burden' exists from the inception of the rights, and follows those rights for the duration of the copyright.").
24. 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, 770-71 (2001) (reasoning that Congress cannot use its Commerce Clause powers to enact intellectual property protection that does not promote the progress of science and useful arts).
25. Edward C. Walterscheid, The Preambular Argument: The Dubious Premise of Eldred v. Ashcroft, 44 IDEA 331, 333 (2004) ("[T]he preambular argument which treats the 'to promote' language as a preamble which places little or no constraint on the legislative power of Congress is the most dubious and least tenable of the various interpretations that have been given to the Science and Useful Arts Clause.").
26. cf. Andrew M. Hetherington, Comment, Constitutional Purpose and Inter-Clause Conflict: The Constraints Imposed on Congress by the Copyright Clause, 9 MICH. TELECOMM. & TECH. L. REV. 457, 470 (2003) (arguing that the Clause's first part serves to reject a natural-rights approach to intellectual property by emphasizing that the purpose of intellectual-property laws is utilitarian).
27. But see Steven J. Horowitz, A Free Speech Theory of Copyright, 2009 STAN. TECH. L. REV. 2, 3 (arguing that the Copyright Clause's limits are freespeech limits and are thus enforceable as individual rights). My approach is consistent with either view of the First Amendment.
28. U.S. CONST. art. I, § 8, cl. 8.
29. Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221, 1233 (1995) (emphasis omitted).
30. See 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 1.03[A] (2011) ("[T]he phrase 'To promote the progress of science and useful arts . . .' must be read as largely in the nature of a preamble, indicating the purpose of the power but not in limitation of its exercise." (omission in original) (footnotes omitted)).
31. James Monroe, Views of the President of the United States on the Subject of Internal Improvements (May 4, 1822), reprinted in 2 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 1789-1897, at 144, 163 (James D. Richardson ed., 1896).
32. The Militia Clause has a related structure: it confers upon Congress power "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." U.S. CONST. art. I, § 8, cl. 15. Professor Lawrence Solum understands this Clause to enable Congress to execute the Union's laws, suppress insurrections, or repel invasions by calling forth the militia.
33. Were the IP Clause to have the same structure as the Militia Clause, by providing Congress power "to secure for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries to promote the Progress of Science and useful Arts," it would not carry the same textual implication-that the Clause's goals may be promoted only through one specified avenue.
34. U.S. CONST. art. I, § 8, cl. 3.
35. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
36. E.g., 1 WILLIAM WINSLOW CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 486-90 (1953).
37. Gary Lawson, Delegation and Original Meaning, 88 VA. L. REV. 327, 336-43 (2002).
38. See U.S. CONST. art. I, § 8, cl. 12 (authorizing Congress "To raise and support Armies," provided that "no Appropriation of Money to that Use shall be for a longer Term than two Years").
39. See David P. Currie, The Constitution in Congress: Substantive Issues in the First Congress, 1789-1791, 61 U. CHI. L. REV. 775, 860 (1994) ("But the man who dominated constitutional debate in the first House of Representatives was the man who had dominated the Constitutional Convention itself, James Madison.").
40. Cf. Paul M. Schwartz & William Michael Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property, 112 YALE L.J. 2331, 2381 (2003) ("This constrained view of the enumerated powers would, again, suggest that for Madison, the Copyright Clause was a grant of power that Congress would not have possessed but for that grant.").
41. Robert Patrick Merges & Glenn Harlan Reynolds, The Proper Scope of the Copyright and Patent Power, 37 HARV. J. ON LEGIS. 45, 63 (2000).
42. Aaron K. Perzanowski, The Penumbral Public Domain: Constitutional Limits on Quasi-Copyright Legislation, 10 U. PA. J. CONST. L. 1081, 1100-03 (2008).
43. Joseph C. Merschman, Note, Anchoring Copyright Laws in the Copyright Clause: Halting the Commerce Clause End Run Around Limits on Congress's Copyright Power, 34 CONN. L. REV. 661, 664 (2002).
44. Jack M. Balkin, Commerce, 109 MICH. L. REV. 1, 12 (2010).
45. See infra text accompanying notes 154-62.
46. BRUCE W. BUGBEE, GENESIS OF AMERICAN PATENT AND COPYRIGHT LAW 95-100 (1967).
47. 3 DOCUMENTARY HISTORY OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 554-55 (1900).
48. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 473 (Max Farrand ed., 1911).
49. See THE FEDERALIST NO. 43, at 271-72 (James Madison) (Clinton Rossiter ed., 1961) (addressing the common-law status of works of authorship and inventions and the utility of granting the federal government-rather than the states-the power to enact copyright and patent laws).
50. Scholars offer other theories for this decision, such as a desire to limit monopolistic tendencies, a fear of Congress's favoritism toward particular individuals or states, and a desire to minimize the government's role in the marketplace.
51. The means authorized by the IP Clause indicate how Article I, Section 8 more broadly focuses on solving problems of collective action among the states by placing power in those areas in the hands of Congress.
52. Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 STAN. L. REV. 115 (2010) (same). Many collective-action problems were associated with the preconstitutional implementation of copyright and patent laws by states.
53. By giving Congress power to enact copyright and patent laws, the Constitution mitigated these problems. Relatedly, this theory of collective action explains the intellectual-property powers that the Framers rejected: education and grants and prizes. Neither of these powers would have implicated any significant collective-action concerns, as the states could have implemented both of the contemplated schemes without encountering any unusually worrisome negative externalities. This insight does not mean that Congress's powers extend only to problems of collective action or to every problem of collective action, but rather that the Framers were convinced that some such problems had to be fixed by Congress.
54. Tyler T. Ochoa & Mark Rose, The Anti-Monopoly Origins of the Patent and Copyright Clause, 84 J. PAT. & TRADEMARK OFF. SOC'Y 909, 925-28 (2002).
55. James Madison, Monopolies. Perpetuities. Corporations. Ecclesiastical Endowments., reprinted in Madison's "Detached Memoranda," 3 WM. & MARY Q. 534, 551 (Elizabeth Fleet ed., 1946).
56. See infra text accompanying notes 99-109.
57. Eldred v. Ashcroft, 537 U.S. 186, 213 (2003) (quoting Myers v. United States, 272 U.S. 52, 175 (1926)).
58. H.R. 41, 1st Cong. § 6 (1790), reprinted in 6 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF AMERICA 1626, 1631 (Charlene Bangs Bickford & Helen E. Veit eds., 1986).
59. See Act of Apr. 10, 1790, ch. 7, 1 Stat. 109 (repealed 1793).
60. Edward C. Walterscheid, Patents and Manufacturing in the Early Republic, 80 J. PAT. & TRADEMARK OFF. SOC'Y 855, 873-74 (1998) (citing Letter from Thomas Fitzsimons to Tench Coxe (Mar. 5, 1790)).
61. Letter from Tench Coxe to James Madison (Mar. 21, 1790), reprinted in 13 THE PAPERS OF JAMES MADISON: CONGRESSIONAL SERIES 111, 113 (Charles F. Hobson et al. eds., 1981) (footnote omitted).
62. Alexander Hamilton, First Draft of the Report on the Subject of Manufactures (1790), reprinted in 10 THE PAPERS OF ALEXANDER HAMILTON 23 (Harold C. Syrett et al. eds., 1966).
63. See Gonzales v. Raich, 545 U.S. 1, 15-16 (2005) ("For the first century of our history, the primary use of the [Commerce] Clause was to preclude the kind of discriminatory state legislation that had once been permissible.").
64. Richard A. Epstein, The Proper Scope of the Commerce Power, 73 VA. L. REV. 1387, 1389 (1987) (arguing that Alexander Hamilton's understanding of the word "commerce" was "restrictive by modern standards").
65. See e.g., United States v. Lopez, 514 U.S. 549, 585 (1995) (Thomas, J., concurring) ("At the time the original Constitution was ratified, 'commerce' consisted of selling, buying, and bartering, as well as transporting for these purposes.").
66. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189-90, 196-97 (1824) (finding that "commerce" includes "the commercial intercourse between nations").
67. Anthony J. Colangelo, The Foreign Commerce Clause, 96 VA. L. REV. 949, 962 (2010) (arguing that Congress's foreign-commerce power is robust because historically there has been an "overriding concern that the federal government speak with one voice when regulating foreign commerce").
68. James Madison, First Inaugural Address (Mar. 4, 1809), in 8 THE WRITINGS OF JAMES MADISON 47, 49 (Gaillard Hunt ed., 1908).
69. Some argued against the law's passage based on the IP Clause's external limitations. John H. Florer, Major Issues in the Congressional Debate of the Morrill Act of 1862, 8 HIST. EDUC. Q. 459, 463-65 (1968). In addition to occurring much later in the nation's history, this action was arguably consistent with Congress's earlier rejection of the university power: it was undertaken to provide states with land so that they might exercise their constitutionally acceptable authority to create universities.
70. 2 ANNALS OF CONG. 1551 (1790).
71. In 1821, Congress created the Columbian College in the District of Columbia, The Columbian College: Where It All Began, GEO. WASH. UNIV., http://columbian.gwu.edu/aboutus/history (last visited Mar. 19, 2012), pursuant to its power "To 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," U.S. CONST. art. I, § 8, cl. 17. With regard to Washington, D.C., the seat of the U.S. government, Congress's powers resemble the powers reserved to the states and include those otherwise forbidden to Congress. Therefore, even if Congress is forbidden via the IP Clause from creating universities pursuant to its other enumerated powers, its power to do so pursuant to its plenary power over the District of Columbia seems to trump the IP Clause's external limitations.
72. Cf. Eugene Kontorovich, The Constitutionality of International Courts: The Forgotten Precedent of Slave-Trade Tribunals, 158 U. PA. L. REV. 39, 51 (2009) (observing that "[t]he absolute nature of congressional control [over the District of Columbia] has suggested . . . that some other constitutional constraints do not apply").
73. 1 ANNALS OF CONG. 143 (1789) (Joseph Gales ed., 1834).
74. For example, Representatives Joshua Seney, John Page, and Alexander White all questioned the government's authority to fund the invention's further development.
75. H.R. JOURNAL, 1st Cong., 1st Sess. 18 (1789). Madison later vaguely spoke in favor of Churchman's research efforts without discussing the funding request specifically.
76. H.R. DOC. NO. 4-74 (1796), reprinted in 1 AMERICAN STATE PAPERS: MISCELLANEOUS 140, 140 (Walter Lowrie & Walter S. Franklin eds., Wash, D.C., Gales & Seaton 1832).
77. cf. Edward C. Walterscheid, Conforming the General Welfare Clause and the Intellectual Property Clause, 13 HARV. J.L. & TECH. 87, 99-100 (1999) (discussing similar early congressional doubts about the constitutionality of federal educational funding).
78. U.S. CONST. art. I, § 8, cl. 1.
79. United States v. Butler, 297 U.S. 1, 65 (1936).
80. Not until 1936 did the Supreme Court definitively side with Hamilton on this issue, albeit not in the context of intellectual property. See infra Part II.B.2
81. E.g., Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346, 349 (1991).
82. Goldstein v. California, 412 U.S. 546, 555 (1973).
83. Great Atl. & Pac. Tea Co. v. Supermkt. Equip. Corp., 340 U.S. 147, 154 (1950) (Douglas, J., concurring).
84. Trade-Mark Cases, 100 U.S. 82, 93 (1879).
85. Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989) (quoting Graham v. John Deere Co., 383 U.S. 1, 6 (1966)).
86. Graham, 383 U.S. at 5-6.
87. see also Great Atl. & Pac. Tea Co., 340 U.S. at 154 (Douglas, J., concurring) (finding that the IP Clause, "unlike most of the specific powers which Congress is given, . . . is qualified").
88. Trade-Mark Cases, 100 U.S. 82 (1879).
89. Jeanne C. Fromer, The Role of Creativity in Trademark Law, 86 NOTRE DAME L. REV. 1885, 1891 (2011) ("Trademark law came to emphasize protecting consumers from confusion to foster fair competition and to justify a more extensive right.").
90. Trade-Mark Cases, 100 U.S. at 94-98 (questioning "whether trade-mark bears such a relation to commerce in general terms as to bring it within congressional control," yet proposing that the Court leave the issue undecided in light of "the dictate of wisdom and judicial propriety").
91. Other courts construing the Trade-Mark Cases have focused on the latter part of the IP Clause. See, e.g., United States v. Martignon, 492 F.3d 140, 146 (2d Cir. 2007) ("[T]he Court [in the Trademark Cases] held that a criminal trademark statute was not authorized by the Copyright Clause because trademarks do not require originality.").
92. That said, the Supreme Court has implied in an offhand dictum that the Commerce Clause might be invoked, in addition to the IP Clause, to regulate intellectual property. See Goldstein v. California, 412 U.S. 546, 559 (1973) ("Where the need for free and unrestricted distribution of a writing is thought to be required by the national interest, the Copyright Clause and the Commerce Clause would allow Congress to eschew all protection.").
93. Eldred v. Ashcroft, 537 U.S. 186 (2003).
94. Eldred, 537 U.S. at 211-12.
95. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964).
96. U.S. CONST. art. I, § 8, cl. 4.
97. Ry. Labor Executives' Ass'n v. Gibbons, 455 U.S. 457 (1982).
98. Cf. Jane C. Ginsburg, No "Sweat"?: Copyright and Other Protection of Works of Information After Feist v. Rural Telephone, 92 COLUM. L. REV. 338, 370 (1992) ("Justice Rehnquist declared: 'If we were to hold that Congress had power to enact nonuniform bankruptcy laws pursuant to the Commerce Clause, we would eradicate from the Constitution a limitation on the power of Congress to enact bankruptcy laws.' Under this approach, one could contend that a law protecting compiled information under the Commerce Clause would similarly be invalidated as an attempt to elude a substantive limitation on Congress' power to grant copyrights." (footnote omitted) (quoting Gibbons, 455 U.S. at 468-69)).
99. E.g., Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985).
100. 122 CONG. REC. 2834 (1976) (statement of Sen. John Little McClellan).
101. William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. LEGAL STUD. 325, 326 (1989).
102. E.g., Diamond v. Chakrabarty, 447 U.S. 303, 307 (1980).
103. Dan L. Burk & Mark A. Lemley, Policy Levers in Patent Law, 89 VA. L. REV. 1575, 1597-99 (2003).
104. Stewart E. Sterk, Rhetoric and Reality in Copyright Law, 94 MICH. L. REV. 1197, 1197 (1996).
105. Alina Ng, The Author's Rights in Literary and Artistic Works, 9 J. MARSHALL REV. INTELL. PROP. L. 453, 453-54 (2009).
106. Jeanne C. Fromer, Patent Disclosure, 94 IOWA L. REV. 539, 547-54 (2009).
107. Mark A. Lemley, The Economics of Improvement in Intellectual Property Law, 75 TEX. L. REV. 989, 997 (1997).
108. Ralph S. Brown, Eligibility for Copyright Protection: A Search for Principled Standards, 70 MINN. L. REV. 579, 592-96 (1985).
109. Howard B. Abrams, Copyright, Misappropriation, and Preemption: Constitutional and Statutory Limits of State Law Protection, 1983 SUP. CT. REV. 509, 527-28.
110. E.g., Fogerty v. Fantasy, Inc., 510 U.S. 517, 526-27 (1994).
111. Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989).
112. see also Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 480-81 (1974) ("[A]dditions to the general store of knowledge are of such importance to the public weal that the Federal Government is willing to pay the high price of 17 years of exclusive use . . . .").
113. Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 229-31 (1964) ("Patents are not given as favors . . . but are meant to encourage invention . . . .").
114. E.g., Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 185-86 (1896).
115. Bonito Boats, 489 U.S. at 151.
116. see also Graham v. John Deere Co., 383 U.S. 1, 6 (1966) ("Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available.").
117. Professor Pollack similarly reads various limitations into the IP Clause, including that the Clause "prevents Congress from giving authors or inventors exclusive rights unbounded by premeasured time limitations."
118. Malla Pollack, Unconstitutional Incontestability? The Intersection of the Intellectual Property and Commerce Clauses of the Constitution: Beyond a Critique of Shakespeare Co. v. Silstar Corp., 18 SEATTLE U. L. REV. 259, 260 (1995).
119. Goldstein v. California, 412 U.S. 546, 555 (1973).
120. EDWARD C. WALTERSCHEID, THE NATURE OF THE INTELLECTUAL PROPERTY CLAUSE: A STUDY IN HISTORICAL PERSPECTIVE 125 & n.46 (2002).
121. Edward Lee, Technological Fair Use, 83 S. CAL. L. REV. 797, 819 (2010).
122. See William W. Buzbee, The One-Congress Fiction in Statutory Interpretation, 149 U. PA. L. REV. 171, 173 (2000) ("[T]he concept of a single Congress producing legislation is undoubtedly a fiction.").
123. See, e.g., Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 168 (1989) ("It is for Congress to determine if the present system of design and utility patents is ineffectual in promoting the useful arts in the context of industrial design.").
124. See Caleb Nelson, Judicial Review of Legislative Purpose, 83 N.Y.U. L. REV. 1784, 1788 (2008) ("[C]ourts . . . had long been willing to consider some objective indicia of legislative purpose in deciding whether a statute was even superficially valid.").
125. see also David L. Franklin, Facial Challenges, Legislative Purpose, and the Commerce Clause, 92 IOWA L. REV. 41, 90-91 (2006) ("[A]n understanding of constitutional meaning that includes a requirement of legitimate legislative purpose-in short, a judicial concern with the commercial ends or aims of the challenged statute as a whole-lies beneath the doctrinal surface [of Commerce Clause jurisprudence].").
126. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
127. or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government.
128. it would become the painful duty of this tribunal . . . to say that such an act was not the law of the land.").
129. see also Soon Hing v. Crowley, 113 U.S. 703, 710 (1885) ("[T]he rule is general with reference to the enactments of all legislative bodies that the courts cannot inquire into the motives of the legislators in passing them, except as they may be disclosed on the face of the acts, or inferrible from their operation, considered with reference to the condition of the country and existing legislation.").
130. The Head Money Cases, 112 U.S. 580, 595 (1884) (looking to the structural purpose of a federal law levying a per-passenger fee on vessels from foreign ports to determine whether the law was an exercise of Congress's commerce power).
131. John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2408 n.75 (2003).
132. Cf. Samuel Issacharoff, Meriwether Lewis, the Air Force, and the Surge: The Problem of Constitutional Settlement, 12 LEWIS & CLARK L. REV. 649, 653 (2008) ("[O]ur Constitution must incorporate not only the text and the judicial constructions of it, but the accommodations reached by the political branches in the difficult task of actually administering a constitutional democracy.").
133. Cf. United States v. Morrison, 529 U.S. 598, 601-02, 615 (2000) (striking down as an unconstitutional exercise of Congress's commerce power a federal law that provided a "civil remedy for victims of gender-motivated violence," despite congressional findings that such violence substantially affected interstate commerce, because Congress had "rel[ied] so heavily on a method of reasoning that [the Court] ha[d] already rejected as unworkable").
134. Cf. M. David Lepofsky, The Canadian Judicial Approach to Equality Rights: Freedom Ride or Roller Coaster?, 55 LAW & CONTEMP. PROBS. 167, 189 (1992) (refusing to distinguish between laws with a particular single purpose and those with multiple purposes, "lest a legislature be able to piggy-back legislative purposes to enable it to do that which the Constitution forbids").
135. Samuel Issacharoff & Richard H. Pildes, Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights During Wartime, 5 THEORETICAL INQUIRIES L. 1, 44-45 (2004).
136. This transformation happens in many areas of the law, including extraterritoriality of domestic laws, federal preemption of state laws, and treaty obligations. See Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 454-55 (2007) ("The presumption that United States law governs domestically but does not rule the world applies with particular force in patent law.").
137. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (noting that there is a presumption against federal preemption of state laws unless "that was the clear and manifest purpose of Congress").
138. Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) ("[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains, and consequently can never be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of nations as understood in this country.").
139. Cf. infra Part III.B.
140. Cf. infra Part III.E.
141. U.S. CONST. art. I, § 8, cl. 8.
142. Gonzales v. Raich, 545 U.S. 1, 16-17 (2005).
143. For one example, see infra Part III.B.
144. U.S. CONST. art. I, § 8, cl. 1.
145. Letter from Thomas Jefferson to Albert Gallatin (June 16, 1817), reprinted in 15 THE WRITINGS OF THOMAS JEFFERSON, 131, 133 (Albert Ellery Bergh ed., 1907).
146. United States v. Butler, 297 U.S. 1, 65-66 (1936).
147. Agricultural Adjustment Act, ch. 25, 48 Stat. 31 (1933), invalidated by United States v. Butler, 297 U.S. 1 (1936).
148. Butler, 297 U.S. at 65.
149. South Dakota v. Dole, 483 U.S. 203, 206-07 (1987) (quoting Butler, 297 U.S. at 65).
150. David Freeman Engstrom, Drawing Lines Between Chevron and Pennhurst: A Functional Analysis of the Spending Power, Federalism, and the Administrative State, 82 TEX. L. REV. 1197, 1198-99 (2004).
151. U.S. CONST. art. I, § 8, cl. 18.
152. United States v. Comstock, 130 S. Ct. 1949, 1956 (2010) (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413, 418 (1819)) (upholding Congress's power to commit mentally ill sex offenders civilly after they have completed their criminal sentences).
153. McCulloch, 17 U.S. (4 Wheat.) at 414-15.
154. Comstock, 130 S. Ct. at 1956.
155. McCulloch, 17 U.S. (4 Wheat.) at 421.
156. U.S. CONST. art. II, § 2, cl. 2.
157. Missouri v. Holland, 252 U.S. 416 (1920).
158. Reid v. Covert, 354 U.S. 1 (1957) (plurality opinion).
159. Cf. Graeme B. Dinwoodie, Copyright Lawmaking Authority: An (Inter)Nationalist Perspective on the Treaty Clause, 30 COLUM. J.L. & ARTS 355, 362-63 (2007) (arguing that copyright laws passed pursuant to the treaty powers are likely to be valid if they "seek[] to ensure domestic compliance with real international obligations" and are "adopted through a process involving real political checks on legislative lawmaking," even if they do not comply with the IP Clause's means).
160. 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, 4 (2004) (arguing that the IP Clause should not limit the Treaty Clause when the subject matter of a given treaty is international).
161. Richard B. Graves III, Globalization, Treaty Powers, and the Limits of the Intellectual Property Clause, 50 J. COPYRIGHT SOC'Y U.S.A. 199, 210 (2003) ("[T]he federal government could enter into a treaty for the purpose of circumventing limitations on Congressional lawmaking authority. There is good reason to believe that the scope of the treaty enacted for this purpose would not be restricted to external matters.").
162. Benjamin Beiter, Note, Beyond Medellín: Reconsidering Federalism Limits on the Treaty Power, 85 NOTRE DAME L. REV. 1163, 1194 n.206 (2010).
163. Medellín v. Texas, 128 S. Ct. 1346, 1356-57 (2008).
164. Missouri v. Holland, 252 U.S. 416, 432 (1920).
165. Some scholars argue that Holland was wrongly decided and that Congress should be allowed to implement non-self-executing treaties pursuant only to Article I powers other than the Necessary and Proper Clause. E.g., Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 HARV. L. REV. 1867, 1880-92 (2005).
166. Louis Henkin, Treaties in a Constitutional Democracy, 10 MICH. J. INT'L L. 406, 422 (1989).
167. Oona A. Hathaway, Presidential Power over International Law: Restoring the Balance, 119 YALE L.J. 140, 259-60, 261-63 (2009).
168. John C. Yoo, Laws as Treaties?: The Constitutionality of Congressional-Executive Agreements, 99 MICH. L. REV. 757, 763-64 (2001).
169. See, e.g., John O. McGinnis, Medellín and the Future of International Delegation, 118 YALE L.J. 1712, 1747 (2009) ("[C]ongressional-executive agreements, dependent on Article I powers, are not interchangeable with treaties on matters reaching beyond the enumerated powers.").
170. Carlos Manuel Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 HARV. L. REV. 599, 691 n.397 (2008) ("The option of a congressional-executive agreement is unavailable for agreements that address matters beyond Congress's legislative power under Article I.").
171. Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization annex 1C, 1869 U.N.T.S. 299 [hereinafter TRIPS Agreement].
172. Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809 (1994) (codified as amended in scattered sections of the U.S. Code).
173. see also Memorandum for the United States Trade Representative, 58 Fed. Reg. 67,263, 67,267 (Dec. 20, 1993) (describing the president's negotiations with Congress regarding the agreement).
174. Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, S. TREATY DOC. NO. 99-27, 1161 U.N.T.S. 3 [hereinafter Berne Convention].
175. Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, § 2, 102 Stat. 2853, 2853 (codified at 17 U.S.C. § 101 note (2006)).
176. Gary G. Grindler, Aggressive IP Enforcement Is a Must, NAT'L L.J. (May 3, 2010), http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202453202819.
177. At the time he wrote this article, Gary Grindler was the acting deputy attorney general and chairman of the Department of Justice's Task Force on Intellectual Property.
178. Economic Espionage Act of 1996, Pub. L. No. 104-294, 110 Stat. 3488 (codified at 18 U.S.C. §§ 1831-1839 (2006)).
179. Other federal laws protect trade secrets narrowly and for different purposes, such as to guard against federal employees' unauthorized disclosure of certain confidential information. E.g.,18 U.S.C. § 1905 (2006).
180. 18 U.S.C. § 1832(a) (2006).
181. S. REP. NO. 104-359, at 2 (1996).
182. Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 481 (1974).
183. E.g., Mark A. Lemley, The Surprising Virtues of Treating Trade Secrets as IP Rights, 61 STAN. L. REV. 311, 329-32 (2008).
184. See 18 U.S.C. § 1839(3) (2006) (protecting "financial, business, [or] economic . . . information").
185. See e.g., United States v. Yang, 281 F.3d 534, 540-44 (6th Cir. 2002) (scientific information about adhesives research).
186. United States v. Krumrei, 258 F.3d 535, 536-37 (6th Cir. 2001) ("new process for applying hard coatings to the laminate contact surfaces of caul plates").
187. United States v. Martin, 228 F.3d 1, 8-10 (1st Cir. 2000) (composition of veterinary diagnostic tests and research-and-development data).
188. United States v. Hsu, 155 F.3d 189, 191-92 (3d Cir. 1998) ("processes, methods, and formulas for manufacturing Taxol, an anti-cancer drug").
189. United States v. Aleynikov, 737 F. Supp. 2d 173, 174 (S.D.N.Y. 2010) ("computer programs used to operate [a financial firm's] high-frequency trading system").
190. United States v. Genovese, 409 F. Supp. 2d 253, 255 (S.D.N.Y. 2005) (source code).
191. Compare Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 166 (1989) (concluding that state unfair-competition and trade-secret laws are not inconsistent with patent law), and Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 474-93 (1974) (distinguishing between the federal exclusivity of the IP Clause and states' ability to protect trade secrets and intellectual property).
192. Jeanne C. Fromer, Trade Secrecy in Willy Wonka's Chocolate Factory, in THE LAW AND THEORY OF TRADE SECRECY: A HANDBOOK OF CONTEMPORARY RESEARCH 3, 6 (Rochelle C. Dreyfuss & Katherine J. Strandburg eds., 2011) (describing how the "central innovations in the candy industry" are protected by trade secrecy even when patent protection might be obtained).
193. Daniel C. Munson, The Patent-Trade Secret Decision: An Industrial Perspective, 78 J. PAT. & TRADEMARK OFF. SOC'Y 689, 708 (1996) (noting that industrialists often prefer trade secrets, which "encompass some of the most valuable intellectual property").
194. They also reason that the Economic Espionage Act does not establish exclusive rights, but rather merely supplements existing common-law remedies, and therefore does not fall within the ambit of the IP Clause's limitations.
195. See Michael Abramowicz & John F. Duffy, The Inducement Standard of Patentability, 120 YALE L.J. 1590, 1622 (2011) ("[T]rade secrecy protection can theoretically provide even more powerful incentives than patents because trade secrecy rights are potentially infinite in duration.").
196. David S. Levine, Secrecy and Unaccountability: Trade Secrets in Our Public Infrastructure, 59 FLA. L. REV. 135, 156-57 (2007) ("So long as the elements of trade secrecy are met, the right to keep a secret for an infinite period of time underscores the real power of enjoying trade secret protection.").
197. Congress is less likely to provide this clear evidence absent an adopted framework encouraging it to do so. Cf. United States v. Lopez, 514 U.S. 549, 561-63 (1995) (encouraging Congress to make express findings supporting a law's link to interstate commerce by underscoring the findings' relevance to a determination whether Congress acted permissibly within its commerce power).
198. Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809 (1994) (codified as amended in scattered sections of the U.S. Code).
199. The United States acceded to the convention without providing such protection. Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853 (codified as amended in scattered sections of 17 U.S.C.).
200. 17 U.S.C. § 1101(a) (2006).
201. 18 U.S.C. § 2319A (2006).
202. United States v. Martignon, 492 F.3d 140 (2d Cir. 2007).
203. United States v. Moghadam, 175 F.3d 1269 (11th Cir. 1999).
204. KISS Catalog, Ltd. v. Passport Int'l Prods., Inc., 405 F. Supp. 2d 1169 (C.D. Cal. 2005).
205. Martignon, 492 F.3d at 149-52.
206. Moghadam, 175 F.3d at 1280.
207. KISS Catalog, 405 F. Supp. 2d at 1172-74.
208. Uruguay Round Agreements Act, Pub. L. No. 103-465, tit. V, subtit. A, 108 Stat. 4809, 4974 (1994).
209. S. REP. NO. 103-412, at 224 (1994).
210. cf. Moghadam, 175 F.3d at 1276 ("The specific context in which [the law] was enacted involved a treaty with foreign nations, called for by the World Trade Organization, whose purpose was to ensure uniform recognition and treatment of intellectual property in international commerce.").
211. Uruguay Round Agreements Act § 512, 108 Stat. at 4974 (codified as amended at 17 U.S.C. § 1101 (2006)).
212. Martignon, 492 F.3d at 143.
213. U.S. CONST. art. I, § 8, cl. 8.
214. Act of May 31, 1790, ch. 15, 1 Stat. 124 (repealed 1802).
215. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 56-60 (1884).
216. Goldstein v. California, 412 U.S. 546, 561 (1973).
217. Kalem Co. v. Harper Bros., 222 U.S. 55, 63 (1911) (suggesting that "Writings" does not include ideas, which are distinct from "the words in which those ideas are clothed").
218. In ruling on whether the term "Writings" embodied a constitutional requirement of originality, the Court relayed Congress's observation that "[t]he two fundamental criteria of copyright protection [are] originality and fixation." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 355 (1991) (second alteration in original) (quoting H.R. REP. NO. 94-1476, at 51 (1976).
219. S. REP. NO. 94-473, at 50 (1975)).
220. Larissa Mann, If It Ain't Broke . . . Copyright's Fixation Requirement and Cultural Citizenship, 34 COLUM. J.L. & ARTS 201, 202 & n.3 (2011).
221. See, e.g., Laura A. Heymann, How To Write a Life: Some Thoughts on Fixation and the Copyright/Privacy Divide, 51 WM. & MARY L. REV. 825, 845 (2009) ("[P]roposals [to extend copyright protection to the efforts of performers] were met with opposition by, for example, the Committee on Copyrights of the American Bar Association based on its 'attempt to protect performing rights of an intangible nature.'" (quoting Everett N. Curtis, Otto F. Barthel, Louis Charles Smith & George P. Dike, Report of the Committee on Copyrights, 1937 A.B.A. SEC. PAT. TRADE-MARK & COPYRIGHT L. REP. 11, 12-13)).
222. See, e.g., 3 PAUL GOLDSTEIN, GOLDSTEIN ON COPYRIGHT § 17.6.1 (3d ed. 2005) ("There is little doubt that the performances subject to protection are 'writings' in the constitutional sense for, beyond literalism, there is nothing in the mechanical act of fixation to distinguish writings from nonwritings.").
223. Leslie Erin Wallis, Comment, The Different Art: Choreography and Copyright, 33 UCLA L. REV. 1442, 1461, 1466 (1986).
224. See generally Dotan Oliar, Resolving Conflicts Among Congress's Powers Regarding Statutes' Constitutionality: The Case of Anti-Bootlegging Statutes, 30 COLUM. J.L. & ARTS 467, 489-91 (2007) (discussing this view).
225. E.g., Angela T. Howe, United States v. Martignon & KISS Catalog v. Passport International Products: The Anti-Bootlegging Statute and the Collision of International Intellectual Property Law and the United States Constitution, 20 BERKELEY TECH. L.J. 829, 851 (2005).
226. See, e.g., United States v. Moghadam, 175 F.3d 1269, 1274 n.9 (11th Cir. 1999) ("We note that the anti-bootlegging statute may be faced with another constitutional problem under the Copyright Clause. . . . [W]e decline to address the argument in light of our disposition of this case.").
227. KISS Catalog, Ltd. v. Passport Int'l Prods., Inc., 405 F. Supp. 2d 1169, 1172 n.7 (C.D. Cal. 2005) ("Because the United States agreed that the durational limitation of 17 U.S.C. § 302 cannot be incorporated into the Statute, the Court assumes, without deciding, that it is not incorporated.").
228. United States v. Martignon, 492 F.3d 140, 144-45 (2d Cir. 2007).
229. Moghadam, 175 F.3d at 1274-75.
230. KISS Catalog, 405 F. Supp. 2d at 1172.
231. Uruguay Round Agreements Act, Pub. L. No. 103-465, § 504, 108 Stat. 4809, 4976-81 (1994) (codified as amended at 17 U.S.C. §§ 104A, 109(a) (2006)).
232. Adam Liptak, Once in the Public's Hands, Now Back in Picasso's, N.Y. TIMES, Mar. 22, 2011, at A17.
233. Golan v. Holder (Golan III), 132 S. Ct. 873 (2012).
234. Golan v. Holder (Golan II), 609 F.3d 1076, 1094 (10th Cir. 2010), aff'd, 132 S. Ct. 873 (2012).
235. Golan v. Gonzales (Golan I), 501 F.3d 1179, 1186-87 (10th Cir. 2007).
236. Golan I, 501 F.3d at 1187.
237. Luck's Music Library, Inc. v. Gonzales, 407 F.3d 1262, 1263-65 (D.C. Cir. 2005).
238. Golan III, 132 S. Ct. at 889.
239. Golan II, 609 F.3d at 1083. The Supreme Court accepted the first reason-maintaining good foreign relations-by pointing to the Mexican, Thai, Russian, and other criticism of the United States' prior inaction to restore copyrights as Congress later did and an American desire to avoid a trade-enforcement proceeding in the World Trade Organization on that basis.
240. Golan III, 132 S. Ct. at 880-82.
241. This argument is weakened by Congress's 1988 statements that the legislature did not need to implement copyright restoration to comply with the Berne Convention. See THE URUGUAY ROUND AGREEMENTS ACT: STATEMENT OF ADMINISTRATIVE ACTION 323, reprinted in H.R. DOC. NO. 103-316, at 656, 992 (1994) ("Before the United States adhered to the Berne Convention in 1989, Congress determined that the United States was in compliance with Article 18 of the Convention . . . .").
242. E.g., Golan I, 501 F.3d 1179, 1186 (10th Cir. 2007).
243. Golan III, 132 S. Ct. 873, 878 (2012).
244. Another possible interpretation of the provision was colorable. The historical evidence on the precise definition of "limited Times" in this context is scant, Golan I, 501 F.3d at 1190- 91, and before Golan III, the Supreme Court had not ruled on it. It had stated in other contexts, however, that the precise point of copyright and patent laws enacted pursuant to the IP Clause is to ensure that the protected works will fall into the public domain for others to use freely.
245. E.g., Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 151 (1989).
246. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).
247. Graham v. John Deere Co., 383 U.S. 1, 5-6 (1966).
248. Moreover, in preemption decisions analyzing whether states could protect works that had fallen into the public domain, the Court had reasoned that "that which is in the public domain cannot be removed therefrom by action of the States." Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 481 (1974).
249. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348 (1991).
250. But cf. Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865, 1867 (1990) (using history to show that early copyright law protected "works of little personal authorship yet considerable expenditure of labor and capital").
251. See, e.g., Database and Collections of Information Misappropriation Act, H.R. 3261, 108th Cong. (2003) (proposing the "prohibit[ion of] the misappropriation of certain databases").
252. Database Investment and Intellectual Property Antipiracy Act of 1996, H.R. 3531, 104th Cong. (1996) (proposing a statutory amendment "to promote investment and prevent intellectual property piracy with respect to databases").
253. See generally Samuel E. Trosow, Sui Generis Database Legislation: A Critical Analysis, 7 YALE J.L. & TECH. 534, 573-625 (2005) (reviewing various unsuccessful proposals for "sui generis database legislation" that have come up before "the U.S. Congress and at the World Intellectual Property Organization (WIPO)").
254. E.g., H.R. REP. NO. 106-349, pt. 1, at 16 (1999).
255. E.g., J.H. Reichman & Pamela Samuelson, Intellectual Property Rights in Data?, 50 VAND. L. REV. 51, 54-55 (1997).
256. Note, Standards for Federal Funding of the Arts: Free Expression and Political Control, 103 HARV. L. REV. 1969, 1970 (1990).
257. Frances Stonor Saunders, Modern Art Was CIA 'Weapon,' INDEPENDENT (Oct. 22, 1995), http://www.independent.co.uk/news/world/modern-art-was-cia-weapon-1578808.html. These funding activities were not in the service of promoting the progress of science and useful arts.
258. As such, they were outside the purview of the IP Clause's external limitations.
259. National Foundation on the Arts and the Humanities Act of 1965, Pub. L. No. 89-209, § 4(a)-(b), 79 Stat. 845, 846 (codified as amended at 20 U.S.C. § 953(a)-(b) (2006)).
260. Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 574 (1998).
261. See generally THE MANHATTAN PROJECT (Cynthia C. Kelly ed., 2009) (compiling accounts of the Manhattan Project, from its genesis through its aftermath).
262. Other funding for military technology provided earlier in the United States' history, such as funding for the appointment of teachers of arts and sciences for military instruction, Sidney Forman, Why the United States Military Academy Was Established in 1802, 29 MILITARY AFF. 16, 22 (1965), similarly had no material structural purpose of promoting the progress of science and useful arts.
263. Jeffrey A. Hart, Organizational Cultures in U.S. Research-Oriented Universities, in ADAPTING UNIVERSITIES TO THE GLOBAL SOCIETY-A TRANSATLANTIC PERSPECTIVE 143, 143-44 (Charles F. Bonser ed., 2009).
264. National Science Foundation Act of 1950, Pub. L. No. 81-507, § 2, 64 Stat. 149, 149 (codified at 42 U.S.C. § 1861 (2006)).
265. 42 U.S.C. § 1862(a)(1), (3) (2006).
266. Eve Heafey, Public Access to Science: The New Policy of the National Institutes of Health in Light of Copyright Protections in National and International Law, 14 UCLA J.L. & TECH., no. 2, 2010, at 1, 46.
267. Act of Dec. 21, 1878, Res. No. 2, 20 Stat. 487.
268. See 42 U.S.C. §§ 241, 282 (2006) (empowering the director of the National Institutes of Health to undertake research activities).
269. NIH Budget, NAT'L INSTS. HEALTH, http://www.nih.gov/about/budget.htm (last visited Mar. 19, 2012).
270. See generally History, DEF. ADVANCED RESEARCH PROJECTS AGENCY, http://www. darpa.mil/About/History/History.aspx (last visited Mar. 19, 2012) (providing a brief overview of the history of the Defense Advanced Research Projects Agency and including links to further information).
271. See Our Work, DEF. ADVANCED RESEARCH PROJECTS AGENCY, http://www.darpa. mil/our_work (last visited Mar. 19, 2012) ("The Defense Advanced Research Projects Agency (DARPA) was established in 1958 to prevent strategic surprise from negatively impacting U.S. national security and create strategic surprise for U.S. adversaries by maintaining the technological superiority of the U.S. military.").
272. H.R. REP. NO. 94-1476, at 59 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5672.
273. See generally Samuel E. Trosow, Copyright Protection for Federally Funded Research: Necessary Incentive or Double Subsidy?, 22 CARDOZO ARTS & ENT. L.J. 613, 648-71 (2004) (summarizing "the initial reactions . . . from the various stakeholders" to a bill proposed by Representative Martin Olav Sabo in 2003 that would have amended the copyright rules applicable to federally funded works).
274. E.g., Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations (OMB Circular A-110), 2 C.F.R. § 215.36 (2011).
275. NAT'L SCI. FOUND., NSF GRANT POLICY MANUAL, at VII-16 to -17 (2005), available at http://www.nsf.gov/pubs/manuals/gpm05_131/gpm05_131 .pdf.
276. U.S. DEP'T OF HEALTH & HUMAN SERVS., NIH GRANTS POLICY STATEMENT, at IIA-85 to -87 (2011), available at http://grants.nih.gov/grants/policy/nihgps_2011/nihgps_2011.pdf.
277. Bayh-Dole Act, Pub. L. No. 96-517, sec. 6, § 202, 94 Stat. 3015, 3020 (1980) (codified as amended at 35 U.S.C. § 202 (2006)).
278. See Rebecca S. Eisenberg, Public Research and Private Development: Patents and Technology Transfer in Government-Sponsored Research, 82 VA. L. REV. 1663, 1663 (1996) ("[L]egislation [prior to a pair of statutes passed in 1980] had typically encouraged or required that federal agencies sponsoring research make the results widely available to the public through government ownership or dedication to the public domain.").
279. The law was changed to improve the dissemination of inventions resulting from funded research by providing a greater incentive to commercialize. S. REP. NO. 96-480, at 3 (1979).
280. Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1565 (Fed. Cir. 1988).
281. I do not mean to say that any and all means not enabled by the IP Clause can be enacted pursuant to the Necessary and Proper Clause. Some means are too tenuously related to the IP Clause's means and ends to qualify. For example, something maintained as a trade secret cannot be patented.
282. See 35 U.S.C. § 102(g) (2006) (disallowing an inventor a patent when "another inventor . . . establishes . . . that before [the filing person's] invention thereof the invention was made by such other inventor and not abandoned, suppressed, or concealed" (emphasis added)).
283. United States v. Comstock, 130 S. Ct. 1949, 1956 (2010) (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413, 418 (1819)).