Sunday, October 19, 2008


Law professor Maria Pollack, whom I have criticized in the past for not understanding, science, engineering or patent law, HAS written an interesting article on how aspects of copyright law violate the "progress" clause of the Constitution. Her paper is titled "What is Congress supposed to promote? Defining 'progress' in Article I, Section 8, Clause 8, of the United States Constitution", and appeared recently in the Nebraska Law Review. Her conclusion:
This Article uses linguistic evidence to disprove a long standing assumption about the Progress Clause, which gives Congress "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". The word "progress" is not a reference to the Enlightenment Idea of Progress and, thus, an anachronistic bias incapable of cabining Congress. The word "progress" means "spread". Congress does not have the power to create any intellectual property regime it thinks will increase the Gross National Product, campaign donations from holders of large copyright portfolios, or world harmonization. Any right to exclude others from use of writings and discoveries must promote the spread of knowledge and technology. This clarification of the constitutional language warrants court overthrow of both the circumvention limitations in the Digital Millenium Copyright Act and the twenty year subsidy provided copyright holders by the Copyright Term Extension Act.