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Archived updates for Wednesday, October 20, 2004

When "Progress" Means "Dissemination"

According to Malla Pollack of the University of Idaho College of Law, the word "progress" meant "dissemination" in 1789. The original meaning of Article One, Sec. 8, cl. 8, therefore, is that Congress has the right to grant only such temporally limited exclusive rights in writings and new technology so as to encourage the dissemination of knowledge and new technology to the population.

This short article answers the question "How would the United States positive law have differed if the Supreme Court had reached the Progress Clause when its original meaning was still clear?" The author surmises that

  • 'Intellectual property' may never have been born
  • Copyright and patent would have been viewed as claims for payment, not property rules
  • Congressional expansions of the term of existing copyrights or patents would be void attempts to take constitutionally-protected rights from the general public
  • Someone who wishes to enforce his or her copyright in a work should be required
    to place a conspicuous notice on every dissemination of the work
  • The doctrine of infringement by equivalents would not exist

The author concludes that such an interpretation "would revolutionize American 'intellectual property' and, to some degree, First Amendment doctrine by prioritizing people's access to writings and discoveries -- everyday non-intellectual, non-investing, people -- the posterity for whose general welfare and liberty the Constitution was ratified. This is precisely the lesson Professor Balkin learns about free speech principles from the Internet."

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