07 January 2004

Originalism, Copyright, and the First Amendment
Professor Solum (Legal Theory Blawg) recently blawgged a panel on "copyright and the First Amendment" held at the annual American Association of Law Schools convention. His closing comment (I apologize for the length, but I want to be sure to include all relevant context) is:

[Professor Neil] Netanel [of the University of Texas Law School] thought that it was completely obvious that the [F]irst [A]mendment must create a "liberty right" that limits what would otherwise be a plenary copyright power. (The world "plenary" is mine, not Netanel's.) Netanel's view accords with the contemporary (post New Deal) understanding of the relationship between Congress's Article I powers and the Bill of Rights. The modern view is that Article I creates an ocean of power in which the Bill of Rights provides islands of liberty. The original understanding, at least in its Madisonian version, may have been quite different.

Suppose that the Framers saw the relationship between Article I power and the Bill of Rights differently. Suppose they saw islands of power in a sea of liberty. Suppose they believed that the [F]irst [A]mendment's primary function was to reinforce the message of Article I: that the powers therein granted were limited and properly construed simply would not give Congress power to restrict the freedom of speech or of the press. That is, suppose that the original understanding was that the Article I powers contained internal limits that, if respected, made the collision between freedom of speech and copyright impossible.

Given this understanding of the [F]irst [A]mendment, the first question we ought to ask is how the copyright power could be construed so as to provide internal limits on that power that avoid any collision with freedom of speech and press. With this point in mind, it is interesting to consider the first copyright act which is dramatically narrower than current law. The term was much shorter—a maximum of 28 years. More importantly, the scope of copyright itself was narrower—for example, no derivative works were covered. Given this narrower understanding of the copyright power, the kinds of examples that Netanel discusses simply would not arise.

On the original understanding of the copyright power, it is not clear that there was any possibility of collision between copyright and freedom of speech. Perhaps the key to understanding the copyright power is to construe that power so as to avoid collision with free speech values.

"Blogging from Atlanta 05, Association of American Law Schools, Section on Constitutional Law, Copyright and the First Amendment" (06 January 2004) (italics in original; boldface mine).

This is a short, coherent, considered discussion of a very difficult question. I think the implicit assumptions—commendably and (unfortunately) unusually for most writing that proposes "originalism" as the "correct" interpretive model—are pretty clear, and actually pretty explicit, in Professor Solum's analysis; with one exception that swallows the rule. That exception is a comparison of apples to oranges that rages throughout the entire debate on "copyright v. First Amendment": that we are comparing a discretionary statutory implementation of a constitutional power to an imperative constitutional restriction.

Even without worshipping at the altar of John Marshall—who was himself a figure in the War of American Secession and the drafting of the Constitution, and thus has a better claim on "original understanding" than do most commentators on the concept—the idea of originalism as constraining Congressional implementation of one of its inchoate and ill-defined powers (ironically, one of the better-defined ones in Article I, § 8) does not hold up to careful analysis. We need not rely just on the concept that "it is a Constitution that we are expounding" (see generally this new book for general readers). The real problem is not that there appears to be a collision; it goes beyond identifying such a collision, a difficult task in itself, to identifying its behavioral cause(s).

The First Amendment has no behavioral predicate. The Intellectual Property Clause (Article I, § 8, cl. 8) does:

[The Congress shall have 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

(emphasis mine). Without resorting to "originalism" in understanding what a "limited Time" or an "exclusive Right" or a "Writing" or a "Discovery" meant to the Founders—and these are all important questions—Congress can do nothing that does not "promote the Progress of Science and useful Arts" under the authority of the Intellectual Property Clause. But, within the constraints otherwise, it is left to Congress's judgment to decide what will do so. Even though the First Amendment's command to "make no law" has never been so construed, even by Justice Black, the presumption is completely inapposite. It is not contradictory; it is normal to the curve. (What this says about Second Amendment jurisprudence is better left unsaid, because I'm not trying to attract gun nuts and their opponents!)

Something that I find interesting, and rather disturbing, in the whole debate (both as described by Professor Solum and in a wider sense) is that only a few of Congress's redefinitions get much attention at the Constitutional-interpretation level. We argue about what is a "limited Time" (Eldred), we argue about whether derivative works ought to be covered as part of "exclusive Right[s]" or perhaps as a "Writing"—and that's about it. We don't argue about some of the behavioral judgments that have crept into intellectual property law, often in contradictory ways. Consider, for example, the difference between how the Copyright Act defines "Author" and how the Patent Act defines "Inventor," and ask whether those definitions are consistent with themselves, with the Constitution, with common sense, or with anything else. I am particularly disturbed by this passage:

In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title…

17 U.S.C. § 201(b). Congress has here redefined the term "author" away from any reasonable "originalist" understanding of the term—because the concept of the "work for hire" did not exist in the late 18th Century. The definition of "inventor" is more convoluted, but raises the same question. Correlating those problems with the behavioral predicate of the Intellectual Property Clause creates some interesting questions about collisions with the First Amendment that seem well under the radar of the debate, but at least on initial examination seem to be root causes of any perceived collision.