Arguing that “Congress’s authority under the IP Clause is limited to fields and activities in which quantifiable progress can be demonstrated.”
Arguing that the Founders included the IP Clause to encourage the creation and dissemination of public knowledge.
Arguing that, at the time of the Founding, “science” did not mean “general knowledge,” but instead meant “a system of knowledge that comprises distinct branches of study.”
Arguing that “the IP Clause externally limits Congress from seeking, via legislation, to promote the progress of science and useful arts, in any way other than by enacting laws that secure to authors and inventors exclusive rights in their writings and discoveries for limited times.”
Rejecting the relevance of the Framers’ intent (as opposed to original meaning) in the IP Clause and arguing that those attempting to determine the origins of the Clause “are engaging in conjecture to a great degree.”
Supporting arguments in Making Sense of the Intellectual Property Clause with further historical evidence of factors influencing the Framers.
Arguing that at the Founding “patent rights were defined and enforced using the social contract doctrine and the labor theory of property of natural rights philosophy” and that commentators “who rely on Jefferson as an undisputed historical authority to critique expansive intellectual property protections” are misguided in doing so.
Evaluating Eldred v. Ashcroft using textualist and originalist methodologies to argue that, as originally understood, the Copyright Clause is “first and foremost a grant of power to establish an effective copyright system with only modest limits on the exercise of congressional power. Also arguing that “limited judicial review for constitutionality of copyright enactments is consistent with Supreme Court precedent and the intention of the Framers.”
Arguing that “[b]eliefs about the importance of preventing Congress from granting monopolies were neither widely held at the time of the framing nor were they a feature of the Constitution as adopted” and that constitutional norms implied in other limitations on enumerated powers did not limit the IP Clause.
Arguing that the words “to promote” are not empty preamble but instead affirmatively limit the Clause’s grant of power.
Arguing that the Clause “should be viewed in historical context as an American endorsement of England’s repudiation of the speech-suppressing, anti-competitive and otherwise repressive pre-modern copyright system that the English Parliament meant to reshape through the Statute of Anne.”
Arguing that scholars advocating a restrictive construction of the Clause “read Framers’ views at a high level of abstraction,” and that congressional power in this sphere was originally understood to be expansive and subject to deferential judicial review.
Arguing that the phrase “for limited Times” is not an external constraint on Congress if it determines that additional protection is necessary to “promote progress.”
Arguing that “an eighteenth century American reader of the Constitution” would most likely understand “useful arts” to mean “the mechanical arts, which do not include the mysteries by which merchants conduct commerce.”
Arguing that “the Copyright Clause requires that Congress pursue the goal of promoting the progress of science,” that “the meaning of science that best coheres with the constitutional text and the original understanding can be glossed as systematic knowledge or learning of enduring value,” and that “if the limited times restriction is to impose a meaningful limit on Congress’s power, the most plausible constructions are inconsistent with either a term of life plus seventy years or with retroactive extensions.”
Describing the “anti-monopoly” history and development of the IP Clause and detailing the historical rejection of a common law right of “perpetual copyright.”
Arguing that “[t]he great evil in the Framers’ mind, second only to the great evil of centralized, monarchical government, was the evil of state-sanctioned monopoly.”
Arguing, based on analysis of linguistic evidence, that “the word ‘progress’ is not a reference to the Enlightenment Idea of Progress,” but instead “means ‘spread.'”
Arguing that the structure and history of the IP Clause reveal several implicit, but absolute, limits on congressional power.
Arguing that “the grant of copyright and patent power in the Constitution was intended to provide a positive incentive for technological and literary progress while avoiding the abuse of monopoly privileges” and that special legislation extending individual monopolies does not comport with the term “limited.”
Arguing that “[t]here is simply nothing to indicate that there was any general intent by the Framers to limit the authority of Congress to promote the progress of science and useful arts to the issuance of limited-term monopolies to authors and inventors.”
Arguing that the IP Clause grants Congress the authority to create rights in intellectual property, not to secure preexisting, inherent rights.
Arguing that the IP Clause did not, on its face, require a first-to-invent patent regime and describing the historical development of that regime in U.S. patent law.
Describing the framing of the IP Clause against the backdrop of a government of limited and enumerated powers.
Describing the Founding history of the IP Clause and arguing that the Framers’ understanding of the limits imposed by a Constitution of enumerated powers motivated its inclusion.