William Patry, one of the drafters of 17 U.S.C. 1101 and 18 U.S.C. 2319A, the civil and criminal provisions, respectively, of the "anti-bootlegging" statute, has a post on his blog defending the constitutionality of these statutes, both of which have recently been ruled unconstitutional, one by a district court in California (Kiss Catalog v. Passport Productions) and the other by a district court in New York (US v. Martignon).
Patry points out that the live musical performers granted rights under these statutes are engaged in commerce. No one doubts that musical artists are engaged in commerce, often even interstate commerce. But so is virtually every other copyright holder and we haven't taken that as a reason to ignore the Progress Clause's limitations or as a reason to let the Commerce Clause swallow the Progress Clause's field of application.
He also accuses Judge Baer, author of the Martignon opinion, of contradicting himself. I'd be pleased if Patry could clear up another contradiction: 2319A adopts the (C) Act's definition of "fixed" and the (C) Act defines works as "fixed" "when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." So this means that to be "fixed" you have to be "authorized". Nonetheless 2319A speaks of "unauthorized fixations" which translates to "unauthorized authorized embodiments", i.e., it explicitly contradicts itself. What's going on there?
Patry writes, "The reach of the Copyright Clause stops at the fixation door: it doesn't expressly or impliedly swing open to things that aren't fixed." That is where we simply disagree. Patry doesn't address the arguments to the contrary.
With respect to live musical performances, the Law Professors' Brief in the Martignon appeal provides three options: 1) They are writings and hence are governed by the Progress Clause. (One famous treatise author holds this view.) 2) They are not writings and hence are not governed by the Progress Clause. (This is the position taken by the Government in the Martignon appeal and also apparently Patry's view. The Profs. point out that one who takes this position must respond to the First Amendment concerns that such a sweeping regulation of speech poses. Patry doesn't do this.) 3) The Professors instead suggest that they are not Writings, and hence cannot be given copyright or copyright-like protection, but they are nonetheless governed by the Progress Clause and its limitations because that Clause governs all legislation that would regulate original creative expression.
The last seems to me the best view. It may well imply that much legislation, such as the anti-bootlegging statute, is unconstitutional. It may also mean that much more state regulation of original creative expression is preempted than we currently recognize. I don't think those are problems with the view. Rather, I think they are some of the better features of the view. Not because I care about bootleggers, but because it will provide for a more balanced "intellectual property" landscape, one where the limitations of the Progress Clause will keep us in check and prevent us from being tempted to over-expand perpetual rights that don't actually benefit society.
As an aside, Mr. Patry spends some time discussing the drafters' intent to legislate under the Commerce Clause. I'd be pleased for him to actually cite to the legislative history that demonstrates this intent. So far no one has actually provided a citation, and all the comments on the floor of Congress suggest instead that members, at least, believed they were enacting Copyright legislation. (However, we should keep in mind, as Patry also notes, that this is irrelevant to the statute's constitutionality).
Update May 19:The Conversation Continues...
for bIPlog talk, that is. Hilary Rosen notes that her iPod restricts her music playing with DRM, in Steve Jobs, Let my music go. Don't say we didn't warn you, Hilary.
"Congress shall have the 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."
Several names have been used for the clause that is Article I, Section 8, Clause 8 of the U.S. Constitution. It's been called the Intellectual Property Clause, the Copyright and Patent Clause (or just one of those), and the Progress Clause. I believe that only the last of these is factually accurate and that it is also the only name with connotations that match the clause's primary purpose and function.
"The Intellectual Property Clause" is probably the most inaccurate of all the names. "Intellectual Property" is a catch-all phrase under which falls Copyright, Patent, Trademark, Trade Secret, and even some state law rights, such as the Right of Publicity. Several of these do not find their source in Article I Sec. 8 Cl. 8. Notably, Trademark law is enacted pursuant to Congress's Commerce Clause authority. Trade secret law is state law, not enacted under any Constitutional authority. Similarly for other state laws such as the Right of Publicity. So, calling this one clause "THE" IP clause ignores a good bit of "IP".
Calling it just the "Copyright Clause" ignores Patents and calling it just the "Patent Clause" ignores Copyrights. For the same reasons neither is truly accurate.
It is no solution to call it the "Copyright and Patent Clause" either. For even a copyright and patent minimalist like myself should admit that the Clause never uses either word! We have interpreted the Clause to provide authority for Copyrights and Patents, but this doesn't mean that the same clause might not provide support for other "exclusive rights" that could be secured for "authors and inventors". In particular, Prof. Pam Samuelson has argued that computer software should receive a sui generis form of protection that would be neither a copyright nor a patent. Such an exclusive right would nonetheless find its basis in Article I Sec. 8 Cl. 8. Other "exclusive rights" could too and would be left out of the "Copyright and Patent" monicker.
"The Progress Clause" on the other hand is factually accurate. The Clause is the only Article 8 power to have a stated purpose. "Congress shall have the 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." If that purpose were not important, the Clause could have simply begun "to secure..." But it doesn't.
One could also accurately call it the "Promotion Clause" or the "Securing Clause" but those names necessarily suggest the questions: Promotion of what? Securing of what? The name "Progress Clause" doesn't leave one guessing. One could also accurately call it the "Exclusive Rights" Clause, but this is where connotation matters. It's clear from the history surrounding the adoption of the Clause and from its own language that the point is not merely to grant exclusive rights for the sake of granting rights. These limited monopolies are not simply some sort of reward. On the contrary, their purpose and the only appropriate Congressional purpose for granting monopolies, is the promotion of Progress. To keep this central focus of the clause present in one's mind, it makes sense to call the clause by that name, the only factually accurate name that's been seriously proposed.
