October 3, 2004
1. I’ve had the pleasure of working with Urs Gasser for the last year on the Digital Media Project. He was the lead on our recent iTunes paper and has a couple more papers in the works. He also has just started a blog.
2. You may remember Dotan Oliar from his paper pre-Eldred offering an economic analysis of term length as creative incentive. He now has drafted a fascinating new paper called, The Origins and Meaning of the Copyright Clause. The abstract:
“In Eldred v. Ashcroft (2003) the Supreme Court reaffirmed the primacy of historical and textual considerations in delineating Congress’ power and limitations under the Intellectual Property Clause. Nevertheless, the Court overlooked what is perhaps the most important source of information regarding these considerations: The debates in the federal Constitutional Convention that led to the adoption of the Clause.
To date, several unsettled questions stood in the way of identifying fully the legislative history behind the Clause. Thus, the Article goes through a combined historical and quantitative fact-finding process that culminates in identifying eight proposals for legislative power from which the Clause originated.
Having clarified the legislative history, the Article proceeds to examine the process by which various elements of these proposals were combined to produce the Clause. This process of textual putting together reveals, among other things, that the text “promote the progress of science and useful arts” serves as a limitation on Congress’ power to grant intellectual property rights.
The Article offers various implications for intellectual property doctrine and policy. It offers a model to describe the power and limitations set in the Clause. It examines the way in which Courts have enforced the limitations in the Clause. It reveals a common thread of non-deferential review running through Court decisions to date, for which it supplies normative justifications. It thus concludes that courts should examine in future and pending cases whether the Progress Clause’s limitation has been overreached. Since Eldred and other cases have not developed a concept of progress for the Clause yet, the Article explores several ways in which courts could do so. Lastly, the Article doubts the accepted wisdom of parsing the Clause dichotomously into a patent power and a copyright power.”