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94 Geo. L.J. 1771 (2005-2006)
Making Sense of the Intellectual Property Clause: Promotion of Progress as a Limitation on Congress's Intellectual Property Power

handle is hein.journals/glj94 and id is 1783 raw text is: Making Sense of the Intellectual Property Clause: Promotion of Progress as a Limitation on Congress's Intellectual Property Power DOTAN OLIAR* ABSTRACT The Article elucidates the Intellectual Property Clause by studying the neglected record from the Constitutional Convention of 1787 pertaining to it. This record consists of proposals by James Madison and Charles Pinckney for congressional power to grant patents, copyrights, and encouragements (bounties), and to establish universities. By tracking the textual transition from the initial proposals to the eventual text of the Clause and by putting this transition in its contemporaneous context, this Article makes two major contributions to our understanding of the Clause. First, the Article takes a stand in a current controversy by providing three direct indications that the Framers intended the first part of the Clause- to promote the progress of science and useful arts-to be a limitation on Congress's intellectual property power It thus refutes a widely held belief that the Framers intended this language as a non-binding preamble. Second, the analysis solves a current puzzle- ment among courts and commentators about the enigmatic ends/means structure of the Clause. It shows that the Clause's unique text reflects the Framers' intent to have each of the Clause's parts participate in defining and limiting the power it confers. The Article reviews the applications of its findings for originalism, for different readings of the Clause, and for recent (e.g., Eldred v. Ashcroft) and pending (e.g., Kahle v. Gonzales, Golan v. Gonzales) constitutional intellectual property litigation. It ends by suggesting ways in which the legal community can move toward forming a concept of progress as a constitutional limitation. TABLE OF CONTENTS INTRODUCTION ..................................... 1772 * Research Assistant Professor, University of Virginia School of Law. © 2006, Dotan Oliar. I am grateful and indebted to William Fisher for invaluable comments, inspiring conversations, and enduring support. For very valuable comments and discussions at different stages of my work I thank Oren Bar-Gill, Doron Ben-Atar, Lillian BeVier, Oren Bracha, Kiwi Camara, Barry Cushman, Richard Fallon, Brandon Garrett, Donald Harris, John Harrison, Bert Huang, Louis Kaplow, Ed Kitch, Mike Klarman, Mark Lemley, Mike Meurer, Michelle Morris, Adam Mossoff, Tom Nachbar, Caleb Nelson, John Palfrey, Yuval Procaccia, Peggy Radin, Sharon Sandeen, Robert Scott, Steven Shavell, Chris Sprigman, Ed Walterscheid, Peter Yu, and Jonathan Zittrain. I thank participants of the 2005 Stanford/Yale Junior Faculty Forum, Harvard Law School's Law and Economics Seminar, Boston University's Intellectual Property Speakers Series, Berkman Center's Fellows Series, and the Intellectual Property Scholars Conference at DePaul College of Law for their comments. I thank the Olin Center for Law, Economics, and Business at Harvard Law School, the Berkman Center for Internet & Society at Harvard Law School, and the University of Virginia School of Law for their hospitality and financial support at different stages of my work. I wish to thank Shannon Lang for excellent assistance and Joshua Carpenter and Annie Christoff of The Georgetown Law Journal for thoughtful editorial work. Most important of all have been the encouragement and wisdom of Michal Barzuza. 1771

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