The Meaning of Science in the Copyright Clause
Ned Snow
Abstract:
At the Framing of the Constitution, ―science‖ meant a system of knowledge that comprises
distinct branches of study or categories of knowledge. This meaning is present in the Copyright
Clause, which premises Congress‘s copyright power on promoting the progress of science.
Courts in the past recognized that this meaning affected the scope of copyright. They initially
read science as requiring that copyrightable expression have a purpose sufficiently valuable to
justify its distinction as a branch of study or category of knowledge. Over time, they read
science as merely precluding expression whose purpose was obviously inconsistent with science.
And then a few decades ago, courts read science as lacking any discriminatory meaning at all.
They anachronistically interpreted science as general knowledge of anything, so that any sort of
expression would be copyrightable. Hence, the modern interpretation of science is very different
from the meaning that it purports to portray—that which existed at the Framing. Departure from
the original meaning occurred subtly, unintentionally, and without thought or deliberation. Yet it
did occur. This Article examines that history and proposes a restoration of the original meaning
of science.
i
The Meaning of Science in the Copyright Clause
Introduction ..................................................................................................................................... 1
I. The Meaning of Science at the Framing ..................................................................................... 8
A.
General Understanding of Science at the Framing ..................................................... 10
1. The Enlightenment ..................................................................................................... 10
2. Johnson‘s Dictionary .................................................................................................. 13
B.
Science Encompassing Reasons for Colonial Copyright ........................................... 15
1. Copyright Statutes ...................................................................................................... 17
2. Copyright Advocates .................................................................................................. 20
C.
Specific Meaning of Science in the Constitution ....................................................... 21
1. Legislative History ..................................................................................................... 24
a. Madison‘s Proposals ............................................................................................... 24
b. Pinckney‘s Proposals .............................................................................................. 26
c. The Committee on Detail......................................................................................... 27
2. Textual Analysis of Science in the Clause ................................................................. 33
a. The Presence of Useful Arts .................................................................................... 34
(1) Lexicographers of the Time .............................................................................. 36
(2) Writings of Influential Thinkers of the Time .................................................... 38
b. The Singular-Plural Inconsistency .......................................................................... 40
3. The 1790 Copyright Act ............................................................................................. 44
II. The Meaning of Science After the Framing ........................................................................... 46
A.
Contemporaries of Framers ....................................................................................... 47
1. The Public ................................................................................................................... 47
2. Congress ..................................................................................................................... 49
3. Courts.......................................................................................................................... 49
B.
From Mid-Nineteenth to Mid-Twentieth Centuries ................................................... 51
1. The Public ................................................................................................................... 52
2. Congress ..................................................................................................................... 54
3. Courts.......................................................................................................................... 55
a. Judicial Expansion of Meaning ............................................................................... 56
(1) Folsom v. Marsh ............................................................................................... 56
(2) Bleistein v. Donaldson ...................................................................................... 57
b. Judicial Preservation of Meaning ............................................................................ 58
(1) Baker v. Selden ................................................................................................. 59
(2) Higgins v. Keuffel ............................................................................................. 60
(3) Lower Court Decisions ..................................................................................... 61
ii
C.
The Modern Interpretation.......................................................................................... 63
1. Congress ..................................................................................................................... 63
2. Courts.......................................................................................................................... 64
a. Judicial Rhetoric ...................................................................................................... 64
b. Judicial Holdings..................................................................................................... 69
3. The Public ................................................................................................................... 72
III. The Meaning of Science Restored ......................................................................................... 74
A.
Narrow Set of Purposes Outside of Science .............................................................. 75
B.
Narrow Set of Purposes Within Science .................................................................... 76
1. Weak Copyright Under the Commerce Clause .......................................................... 77
2. Objections ................................................................................................................... 79
Conclusion… ................................................................................................................................ 82
iii
The Meaning of Science in the Copyright Clause
The Constitution‘s Copyright Clause limits the scope of copyright to works that ―promote
the Progress of Science.‖1 Yet much of today‘s entertainment does not seem to promote any
1
U.S. CONST. art. I, § 8, cl. 8 (―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‖).
This statement that the Copyright Clause limits the scope of copyright to works that ―promote the Progress
of Science‖ is based on three conclusions that are open to disagreement. Although I address these conclusions in the
Article, I do so only tangentially as my argument relies on the work of others who have more fully addressed these
conclusions.
The first conclusion is that the phrase ―promote the Progress of Science‖ (the Progress Clause) within the
Copyright Clause represents a limitation on the congressional copyright power. Not everyone agrees with this. See,
e.g., MELVILLE B. NIMMER & DAVID NIMMER, 1 NIMMER ON COPYRIGHT § 1.03[A] (2010) (―[T]he phrase ‗To
promote the progress of science and useful arts...‘ must be read as largely in the nature of a preamble, indicating the
purpose of the power but not in limitation of its exercise.‖). If the Progress Clause were read to be a preamble, it
would not limit congressional copyright power. See District of Columbia v. Heller, 554 U.S. 570, 577-78 (2008)
(―[A] prefatory clause does not limit or expand the scope of the operative clause.‖). On the other hand, several
copyright scholars have persuasively argued that the Copyright Clause does represent such a limitation. See Dotan
Oliar, Making Sense of the Intellectual Property Clause: Promotion of Progress as a Limitation on Congress’s
Intellectual Property Power, 94 GEO. L.J. 1771, 1810-16 (2006) (concluding that process of framing Copyright and
Patent Clause suggests that Framers intended it as limitation on copyright power); Lawrence B. Solum, Congress’s
Power to Promote the Progress of Science: Eldred v. Ashcroft, 36 LOY. L.A. L. REV. 1, 12-25 (2002) (construing
Progress Clause as grant of power rather than preambular introduction of copyright power); Paul J. Heald &
Suzanna Sherry, Implied Limits on the Legislative Power: The Intellectual Property Clause as an Absolute
Constraint on Congress, 2000 U. ILL. L. REV. 1119, 1119 (2000) (arguing that the Copyright Clause absolutely
constrains Congress‘s legislative power in certain circumstances).
Modern jurisprudence of the Supreme Court does not definitively address the issue of whether the Progress
Clause represents a limitation on congressional power or, alternatively, a non-limiting preamble. Compare Eldred v.
Ashcroft, 537 U.S. 186, 212 (2003) (―[W]e have described the Copyright Clause as both a grant of power and a
limitation, and have said that the primary objective of copyright is to promote the Progress of Science.‖) (quoting
Graham v. John Deere Co., 383 U.S. 1, 5-8 (1966)) with id. at 212 (―[P]etitioners do not argue that the Clause‘s
preamble is an independently enforceable limit on Congress‘ power.‖); see also discussion infra note 67.
The second conclusion is that the copyright power corresponds only to Science and that the patent power
corresponds only to use Arts. See RICHARD C. DEWOLF, AN OUTLINE OF COPYRIGHT LAW 15 (1925). Supreme
Court jurisprudence and copyright scholars usually agree with this conclusion. See Eldred, 537 U.S. at 192-93
(―The Copyright and Patent Clause, U.S. Const., Art. I, § 8, cl. 8, provides as to copyrights: ‗Congress shall have
Power…[t]o promote the Progress of Science…by securing [to Authors] for limited Times…the exclusive Right to
their…Writings.‘‖) (ellipses in original); Graham, 383 U.S. at 5 (―[T]he federal patent power stems from a specific
constitutional provision which authorizes the Congress ‗To promote the Progress of…useful Arts, by securing for
limited Times to…Inventors the exclusive Right to their…Discoveries.‘‖) (ellipses in original); EDWARD C.
WALTERSCHEID, THE NATURE OF THE INTELLECTUAL PROPERTY CLAUSE: A STUDY IN HISTORICAL PERSPECTIVE
116-18 (2002) (linking science with copyright and useful arts with patent); Solum, supra note 1, at 12 (―[T]he
structure of the Clause and its history of exposition makes clear the parallel structure that associates ‗Science,‘
‗Authors,‘ and ‗Writings‘ with the copyright power.‖); see also L. RAY PATTERSON & STANLEY W. LINDBERG, THE
NATURE OF COPYRIGHT: A LAW OF USERS‘ RIGHTS 48 (1991).
The third conclusion is that the Progress Clause requires individual works to promote the progress of
science to be copyrightable. In the past, the Supreme Court has required any particular work to comport with the
meaning of each word in that Clause. See, e.g., Higgins v. Keuffel, 140 U.S. 428, 431 (1891) (denying copyright
1
progress in science. Do Playboy magazines, Frank Sinatra classics, and Red Sox sportscasts
promote science? Although the question is simple, the answer is not. The stakes are high,
threatening to upend congressional power over the multi-billion-dollar entertainment industry
and, for that matter, threatening to redefine all of modern copyright law. In the face of these
stakes, the question raises a fundamental yet complex issue in copyright law: What is the
meaning of science in the Copyright Clause?
Modern courts and commentators teach that science at the time of the Framing meant
general knowledge.2
This teaching suggests that any sort of original expression promotes
science—including expression from Playboy, Frank Sinatra, and the Red Sox—because any
original expression adds to the general store of knowledge.3
But this teaching is entirely
infringement for bottle labels on basis that the labels have no connection to the progress of science); see also
discussion infra Part II.A (reciting history of judicial treatment of science). Today, however, the Court has been
silent on the issue, sending mixed signals in related copyright contexts. Compare Feist Publications, Inc. v. Rural
Telephone Service Co., Inc., 499 U.S. 340, 361-63 (1991) (denying copyright protection for directory of telephone
number on basis that the individual work does not satisfy the constitutional requirement of originality), with Eldred,
537 U.S. at 222 (―[T]he Copyright Clause empowers Congress to determine the intellectual property regimes that,
overall, in that body's judgment, will serve the ends of the Clause. …The wisdom of Congress' action … is not
within our province to second-guess.‖). Scholars have considered this issue only in passing, leaving it entirely
unsettled. See, e.g., L. Ray Patterson & Craig Joyce, Copyright in 1791: An Essay Concerning the Founders’ View
of the Copyright Power Granted to Congress in Article I, Section 8, Clause 8 of the U.S. Constitution, 52 EMORY
L.J. 909, 947 (2003) (briefly rejecting argument that the progress-of-science clause requires an examination of
individual works).
2
1 WILLIAM F. PATRY, COPYRIGHT LAW AND PRACTICE 123 (1994) (―The term ‗science‘ as used in the Constitution
refers to the eighteenth-century concept of learning and knowledge.‖); L. RAY PATTERSON & STANLEY W.
LINDBERG, THE NATURE OF COPYRIGHT: A LAW OF USERS‘ RIGHTS 48 (1991) (―[T]he word science retains its
eighteenth-century meaning of ‗knowledge or learning.‘‖); WALTERSCHEID, supra note 1, at 125 (―The use of the
term ‗science‘ [in the Copyright Clause] is straightforwardly explained by the fact that in the latter part of the
eighteenth century ‗science‘ was synonymous with ‗knowledge‘ and ‗learning.‖‘); Oliar, supra note 1, at 1809
(―[T]he eighteenth century meaning of ‗science‘ was close to the meaning of ‗knowledge.‘‖); Solum, supra note 1,
at 47-56 (analyzing meaning of science at time of Framing); Malla Pollack, Dealing with Old Father William, or
Moving from Constitutional Text to Constitutional Doctrine: Progress Clause Review of the Copyright Term
Extension Act, 36 LOY. L.A. L. REV. 337, 376 (2002) (―‗Science‘ means ‗knowledge‘ in an anachronistically broad
sense.‖); NEIL WEINSTOCK NETANEL, COPYRIGHT'S PARADOX 106 (describing the overriding purpose of promoting
the ―progress of science‖ as ―broadly understood to include all products of the mind‖) (2008). For a discussion of
judicial instances of construing science to mean general knowledge see discussion infra Part II.C.2 and infra notes
15 and 226.
3
This is not to say that anything may be copyrighted. Other terms in the Copyright Clause still limit the scope of
copyrightable works (e.g., writings, author). See Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499
U.S. 340, 346 (1991). Works must still be fixed in a tangible medium and be original expression to be
2
mistaken. All evidence indicates that the modern interpretation of the original meaning of
science is anachronistically incorrect. The evidence suggests that neither the Framers nor the
public of that time would have ever intended such a broad, and for all practical purposes
meaningless, meaning of science.4 From the text of the Constitution, to dictionaries of the time,
to writings of the Framers, to colonial copyright statutes, to case law proximate to the Framing,
to initial copyright registration records—all make clear that this modern interpretation of the
original understanding of science is wrong.5 All indicate a very different meaning—a powerfully
discriminating meaning—in the Copyright Clause.6
Science meant a system of knowledge comprising distinct branches of study.7
To
promote the progress of science, a work needed to promote that system of knowledge.8 In
practice, this meant that a copyrightable work would need to have a purpose that was either
instructive in nature or that served a recognized branch of study.9 Of course at the Framing such
a purpose was not evident in every expressive work, so some works—even if original—did not
receive copyright protection. They failed to promote science. For instance, in 1790 The New
York Magazine‘s monthly stories of seduction were not construed as promoting science, and so
they accordingly were not copyrighted.10 By contrast, a journal of lunar observations and an
copyrightable. See id. That courts have interpreted science to encompass everything does not imply that everything
is copyrightable.
4
See discussion infra Part I.
5
See discussion infra Part I.A.
6
See discussion infra Part I.B.
7
See discussion infra Part I.B.2.
8
See discussion infra Part II.A.
9
See discussion infra Part II.A.
10
In 1790, the year that the first Federal Copyright Act became effective, the New York Magazine published in
January a lurid story entitled, The Fatal Effects of Seduction. 1 N.Y. MAGAZINE 22, 22-23 (1790). The next month,
it published a similar story that set forth acts of seduction, Edmund and Harriet. 1 N.Y. MAGAZINE 86, 86-89, 13739 (1790). In June, it followed up these earlier stories of seduction with, The Country Squire’s Revenge. 1 N.Y.
MAGAZINE 354, 354-58 (1790). None of the stories, or the magazine publications, cited in note 10 are listed in the
3
instructional book on administering medicines (both published in 1791) did receive copyright
protection.11 Early copyright records indicate that the public understood federal copyright as
requiring a copyrightable work to have a purpose either that was instructive in nature or that
served a recognized branch of study.12 This understanding finds further support in case law of
the nineteenth and twentieth centuries.13 Thus, the meaning of science in the Copyright Clause
once constrained the scope of federal copyright.
Despite strong historical evidence regarding the original meaning and application of
science in the Copyright Clause, modern courts and commentators have given scant attention to
science.14 Their construction of science as originally meaning knowledge—and nothing more—
federal registration for copyright protection—a requirement at that time for protection. See JAMES GILREATH &
ELIZABETH CARTER WILLS, FEDERAL COPYRIGHT RECORDS 1790-1800 (1987) at 101-15 [hereinafter FEDERAL
COPYRIGHT RECORDS]; Act of May 31, 1790, 1st Cong., 2d Sess., 1 Stat. 124, § 3 (requiring registration for
copyright protection of publication).
11
In 1791, William Waring registered for federal copyright protection the following book, entitled:
A JOURNAL FOR LUNAR OBSERVATIONS, BY WHICH THE CALCULATION OF
LONGITUDE IS MUCH EXPEDITED; The MARINER being led through the Operation BY A
regular printed Form in each Page, HAVING ONLY To fill the Blanks from the Nautical Almanac
and proper Tables, as indicated by the leading Lines to the respective Numbers: CONTAINING
ALSO, IN THE SAME PAGE, Blanks for calculating the LATITUDE from the MOON’S
meridional Altitude. With Directions exemplified, &c.
See FEDERAL COPYRIGHT RECORDS, supra note 10, at 5 (capitalization of words in title as originally
registered).
Also in 1791, Doctor Nathan Dorsey registered for federal copyright protection his book entitled:
A NEW AND COMPLETE SYSTEM OF INSTRUCTIONS, FOR THE SAFE AND SUCCESSFUL
ADMINISTRATION OF MEDICINES, IN THOSE DISEASES INCIDENT TO MARINERS.
See id. at 5.
12
See discussion infra Part II.A.1.
13
See discussion infra Part II.A.
14
Cf. Malla Pollack, What Is Congress Supposed to Promote?: Defining “Progress” in Article I, Section 8 of the
United States Constitution, or Introducing the Progress Clause, 80 NEB. L. REV. 754, 756, 810 (2001) (examining
progress term); Thomas R. Lee, To Promote the Progress of Science”: The Copyright Clause and Congress's Power
to Extend Copyrights, 16 HARV. J.L. & TECH. 1, 8-15 (2002) (concluding that meaning of science was not
controversial, and analyzing only meaning of progress); Margaret Chon, Postmodern “Progress”: Reconsidering
the Copyright and Patent Power, 43 DEPAUL L. REV. 97, 102-04 (1993) (analyzing meaning of progress in
Copyright Clause).
Only a few scholars have analyzed the meaning of science in the Copyright Clause. Professor Solum
derived a meaning from the Oxford English Dictionary, the 1790 Copyright Act, and one early case that considered
4
is wanting for support.
Indeed, the minimal analysis that has led modern courts and
commentators to this conclusion is fundamentally flawed. They rely solely on the first entry of
Dr. Samuel Johnson‘s 1786 Dictionary of the English Language, where Dr. Johnson defined
science as ―knowledge.‖15 At that time, lexicographers—including Dr. Johnson—listed entries
in order of their development in meaning—their chronological etymology.16 So because Dr.
its meaning. Solum, supra note 1, at 47-56. Although an admirable start, his analysis was secondary to the primary
focus of his article, which argues against retroactive term extension of copyright law. See id. at 3-4. Much more
can be explored and analyzed that sheds further light on the meaning of science.
Professor Bernard Cohen spent three pages of his book, Science and the Founding Fathers, analyzing the
meaning of science. See I. BERNARD COHEN, SCIENCE AND THE FOUNDING FATHERS 306-08 (1995). For the most
part, his analysis appears cogent. Yet he fails to apply this meaning to copyright jurisprudence, and he fails to give
support for a portion of his interpretation. See COHEN, supra note 14, at 308; discussion infra note 114. If the
meaning is as Cohen describes, his reader is left without an understanding of how such a meaning affects copyright
law.
Professors Ray Patterson and Craig Joyce have concluded that the meaning of science at the time of the
Framing meant learning. See Patterson & Joyce, supra note 1, at 946-47. They reached this meaning based on the
title of the Statute of Anne, words from the Copyright Clause, and the title of the 1790 Act. Id. Although their
conclusion is consistent with the conclusion of this Article, they did not specify whether learning suggests an
education or scholastic connotation. Nor did they analyze whether learning would limit the subject matter or
purpose of a copyrightable work. Arguably, the definition of learning provides as little meaning as does the term
knowledge as a person can learn about any sort of expression.
15
Consider Justice Breyer‘s dissent in Eldred v. Ashcroft. He explained the undisputed premise that by
―‗Science‘… the Framers meant learning or knowledge.‖ 537 U.S. 186, 243 (2003) (Breyer, J., dissenting). To
support this claim, Justice Breyer cited to a commentator, Edward Walterscheid, who relied on the first entry for
science in the 1786 edition of Dr. Samuel Johnson‘s Dictionary of the English Language, where the definition of
science is simply ―knowledge.‖ Id. (citing to WALTERSCHEID, supra note 1, at 125–126 (citing to 2 SAMUEL
JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (London, W. Strahan et al., 7th ed. 1786.). Walterscheid
further noted two other commentators who posited this same meaning, again based on Dr. Johnson‘s first entry for
science. See WALTERSCHEID, supra note 1, at 125–126 n. 46 (citing to Arthur H. Seidel, The Constitution and a
Standard of Patentability, 48 J. PAT. OFF. SOC‘Y 5, 11-12 & n.14 (1966); Giles S. Rich, Principles of Patentability,
28 GEO. WASH. L. REV. 393, 396 (1962)). Indeed, citation to the first entry for science in Dr. Johnson‘s
Dictionary—as in the above instances—constitutes the sole basis for the modern interpretation of the original
understanding of science in the Copyright Clause. This is a problem.
As a sidenote, the commentators referenced in this footnote do not specify which edition of Dr. Johnson‘s
Dictionary they rely on. See, e.g., WALTERSCHEID, supra note 1, at 125–126 n.46. Presumably, they would have
relied on the 1786 edition, which is closest to the time of the framing. In the end, it would not matter which edition
they relied on given that the original 1755 edition lists the same entries for science. See 2 SAMUEL JOHNSON, A
DICTIONARY OF THE ENGLISH LANGUAGE (London, W. Strahan et al., 7th ed. 1755).
16
Dr. Johnson explained:
In every word of extensive use, it was requisite to mark the progress of its meaning, and show by what
gradations of intermediate sense it has passed from its primitive to its remote and accidental signification;
so that every forgoing explanation should tend to that which follows, and the series be regularly
concatenated from the first notion to the last.
See 1 JOHNSON, supra note 15, at page 6 of preface.
5
Johnson listed five entries for science, the first entry—knowledge—represented the most
primitive meaning at the Framing—not the most commonly-used meaning. Hence, courts and
commentators have committed a rudimentary error in relying on Dr. Johnson‘s first entry,
unknowingly applying the most primitive meaning of science at the time of the Framing. Simply
put, courts and commentators don‘t know how to read a dictionary—at least not one printed in
1786.17 Only the most superficial analysis supports the cursory conclusion that science in the
Copyright Clause meant general knowledge at the time of the Framing.
Judicial failure to conduct a rigorous examination of the meaning of science is not
altogether surprising. Much expression that modern culture has come to demand does not fit
nicely into the original meaning of science. The purpose of music performances is usually not to
instruct or serve a particular branch of study. The same could be said of video games, sports
broadcasts, and popular movies. Yet our culture craves these sorts of expressions. Our culture
has shifted its allegiance from educational expression to commercial entertainment, and as a
result, courts have gone ahead and read the Copyright Clause in a way that would facilitate
expression that, in all frankness, has nothing to do with science. It is unsurprising that courts,
Congress, and commentators have ignored the original meaning of science.
Convenient
ignorance has served cultural demand.
At this point it may seem that my goal here is to derail modern American culture with all
its entertaining and otherwise non-scientific expression. To be clear, this is not my goal. Quite
the opposite. My argument recognizes that expression falling outside the original meaning of
science, which would include much of today‘s entertainment, should still receive copyright
protection. But that protection should be permissible under the Commerce Clause—not the
17
See supra note 15.
6
Copyright Clause. The Commerce Clause should govern federal regulation of expression that
exists to further commerce rather than to promote science.
My aim, therefore, is to limit
copyright protection under the Copyright Clause to works that promote the progress of science
and correspondingly to expand copyright protection under the Commerce Clause to works that
promote commerce. And as I explain below, the effect of recognizing copyright protection under
the Commerce Clause, rather than only under the Copyright Clause, is that this would lead to a
much more robust fair-use doctrine. Thus, returning to the original meaning of science would
not strip entertainment or any other non-scientific work of copyright protection. Instead it would
loosen the monopoly that those sorts of expression now enjoy, ultimately allowing for more
instances of its free expression.
In Part I of this article, I discuss the meaning of science in the Copyright Clause, as
understood at the time of the Framing. To provide context for that meaning, I examine the
general understanding of science at the time of the Framing, focusing on the historical context of
the Enlightenment and the common usage of the word as portrayed by lexicographer, Dr. Samuel
Johnson. As further context for science in the Copyright Clause, I examine the instrumental
reasons for enacting copyright in the colonies because they suggest the understanding at the
Framing of the effects of copyright law, i.e., promoting science.
Turning to the precise meaning of science in the Copyright Clause, I examine the
legislative history of the Clause, analyzing the two proposals for a copyright power and the
relevant backgrounds of members of the constitutional committee that drafted the Clause. I then
perform a textual analysis of the verbiage in the Clause, analyzing, first, the juxtaposition of
science and useful arts, and, second, the singular-plural inconsistency between science and arts.
That analysis reveals a meaning of science that is consistent with all other historical indicators: a
7
system of knowledge that comprises distinct branches of study. Lastly, I examine the 1790
Copyright Act and conclude that the Act indirectly supports this meaning.
In Part II, I examine the treatment of science in the Copyright Clause after the Framing
by Congress, courts, and the public generally. This examination I break into three periods. The
first period reflects the treatment by contemporaries of the Framers. During this first period,
science restricted copyrightable works to those which had a purpose that either was instructive in
nature or served a branch of study. The second period reflects treatment during the remainder of
the nineteenth century and into the mid-twentieth century. During this second period, science
restricted copyrightable works only where the work‘s purpose was categorically inconsistent
with the meaning. The third period reflects the treatment by modern courts from the latter
portion of the twentieth century to the present time. During this third period, courts have read
science to encompass any sort of knowledge—even informational awareness—such that any
expression promotes science. After observing this departure from the original meaning, I posit
possible reasons for the seemingly unintentional misreading of science.
In Part III, I submit two proposals that return the law to the original meaning of science.
First, I propose that courts construe science as prohibiting a narrow and obvious group of
purposes, i.e., those that would disqualify expression from free speech protection (e.g.,
obscenity, libel).
Second, I propose that courts construe science according to its original
meaning, which would recognize only a narrow and obvious group of purposes (i.e., scholastic,
educational, or research-oriented). As part of this proposal, I further argue that all expression
falling outside of science should receive protection under the Commerce Clause.
I. The Meaning of Science at the Framing
8
Time and its changing circumstances have informed the meanings of most words in the
Constitution.18 Due process, searches and seizures, private property, commerce, establishment,
and speech have generated scholarly deliberation and vigorous dispute as to their proper
meanings with changing circumstances.19 But not science. Everyone—courts, Congress, and
commentators—subscribes to a meaning of science in the text of the Constitution that purports to
reflect its original meaning without deviation.20 There is simply no argument that different
circumstances require an evolution of meaning. All are originalists—or at least they claim to
be.21 All agree that science of yesterday rules the law of today. Thus, it is important to
understand the precise meaning of science at the time of the Framing, and in particular in the text
of the Copyright Clause.22
18
For an interesting account of the originalist and evolving approaches to constitutional interpretation, see Barry
Friedman & Scott B. Smith, The Sedimentary Constitution, 147 U. PA. L. REV. 1, 9-32 (1998).
19
See, e.g., Edward L. Rubin, Due Process and the Administrative State, 72 CALIF. L. REV. 1044, 1082-90 (1984)
(discussing ―due process‖); Akhil Reed Amar, The Fourth Amendment, Boston, and the Writs of Assistance, 30
SUFFOLK U. L. REV. 53. 63-65, 73-75 (1996) (discussing search and seizure); Thomas W. Merrill, The Landscape of
Constitutional Property, 86 VA L. REV. 885, 934, 969-81 (2000) (analyzing constitutional meaning of ―property‖);
Jack M. Balkin, Commerce, 109 MICH. L. REV. 1, 1-6, 15-18 (2010) (discussing ―commerce‖ definition); Michael
W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 WM. &
MARY L. REV. 2105, 2107-2110, 2131 (2003) (examining ―establishment‖), David McGowan, Approximately
Speech, 89 MINN. L. REV. 1416, 1416-20 (2005) (discussing definition of speech).
20
See, e.g., cases cited infra note 226 and commentators cited supra note 2.
21
In referring to originalist, I recognize the distinction between original public meaning and original intent of the
Framers. The former represents the prevailing approach to an original textual analysis of the Constitution. See
generally Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution’s Secret Drafting
History, 91 GEO. L.J. 1113, 1131 (2003) (explaining originalist textualism as ―faithful application of the words and
phrases of the text in accordance with the meaning they would have had at the time they were adopted as law, within
the political and linguistic community that adopted the text as law‖); David Thomas Konig, Why the Second
Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written Constitutions in
Revolutionary America, 56 UCLA L. REV. 1295, 1301-07 (2009) (describing his own interpretive textual analysis as
original public meaning rather than original intent of the Framers). Although I agree with the original-publicmeaning approach, I draw upon resources indicating original intent in addition to those that directly address original
public meaning because the intent is relevant to the likely original public understanding.
22
The Supreme Court relied heavily on historical meaning to interpret the Copyright Clause in Eldred v. Ashcroft,
536 U.S. 186, 200 (2003) (―To comprehend the scope of Congress' power under the Copyright Clause, ‗a page of
history is worth a volume of logic.‘‖).
9
Several indicators of meaning suggest the original understanding of science in the
Copyright Clause. Those indicators include the following: first, the general understanding of
science at the time of the Framing (independent of any copyright or constitutional contexts);
second, the instrumental reasons for enacting copyright laws at that time which correspond to
promoting science; third, relevant history of the constitutional committee members who were
responsible for drafting the Clause; fourth, legislative history at the Constitutional Convention of
the proposals for a copyright power; fifth, specific textual connotations implied by the verbiage
of the Clause; and sixth, the first Copyright Act enacted three years after the Clause. These
indicators suggest a precise meaning of science: a system of knowledge comprising distinct
branches of study.
A. General Understanding of Science at the Framing
The common meaning of science at the time of the Framing provides a starting point for
understanding its specific meaning in the Copyright Clause. This Section examines the meaning
of science in both its historical context of the Enlightenment and as portrayed by one of the most
well recognized lexicographers of the time, Dr. Samuel Johnson.
1. The Enlightenment
In a general sense, science at the Framing encompassed the tools of reason and
experience, both of which had given rise to the Enlightenment.23 Through science, reason and
experience had yielded an organized method for understanding existence from various
perspectives.24
23
Science unfolded the success of Francis Bacon in exploring the power of
See COHEN, supra note 14, at 60.
24
CLINTON ROSSITER, SEEDTIME OF THE REPUBLIC 440 (1953). For instance, Thomas Jefferson wrote in a 1799
letter: ―…government, religion, morality and every other science…‖ See Seidel, supra note 15, at 12 n.15. For an
interesting summary of the influence of science at the time of the Framing, see Mark R. Killenbeck, The Physics of
Federalism, 51 U. KAN. L. REV. 1, 41-49 (2002):
10
empirical thought; Isaac Newton in achieving an unsurpassable understanding of physics, natural
philosophy, and mathematics; and Carl Linnaeus in developing an unheralded system of
biological taxonomy.25 Many more—Rene Descartes, Baruch Spinoza, and George Berkeley to
name only a few—had similarly achieved powerful explanatory theories relating to different
aspects of existence, all through the scientific tools of reason and experience. At the time of the
Framing, science represented the common trait of Enlightenment achievements—the process that
would draw upon reason and experience to explain existence.
Science yielded the
Enlightenment.
The aspects of existence that science could explain at the Framing were not limited to the
fields of science today—nature and physics. Science at the Framing would have included
subjects that dealt with human motives and interactions.26 That is to say, the explanatory power
of reason and experience in science would have been understood to be capable of explaining
existence from any perspective.27 Science could explain morality, government, and history just
as well as it could physics, biology, or botany.28 Its general understanding would have included
the moral and ethical philosophies of Immanuel Kant as well as the political philosophies of
Thomas Hobbes and John Locke. The same processes of reason and experience informed both
The eighteenth-century enlightenment was a period during which superstition and ignorance
receded in the face of an evolving body of scientific knowledge that gave order and harmony to a
universe that could now be explained in the light of reason and rules. The Framers and Founders
were the products of that period, and for many of them science and scientific ways of thinking
were defining characteristics.
25
See COHEN, supra note 14, at 45-49, 114-20, 147.
26
CLINTON ROSSITER, SEEDTIME OF THE REPUBLIC 440 (1953). For instance, Thomas Jefferson wrote in a 1799
letter: ―…government, religion, morality and every other science…‖ See Seidel, supra note 15, at 12 n.15.
27
See COHEN, supra note 14, at 20 (―[T]he American nation was conceived in a historical period that is generally
known as the Enlightenment, or the great Age of Reason, and science was then esteemed as the highest expression
of human rationality.‖).
28
See ROSSITER, supra note 26, at 130-31.
11
the natural and the social subjects of science.29 Insofar as reason and experience employed an
organized methodology for explaining some aspect of existence, then, science was unbounded.
The successes of science in various areas of study yielded a confidence in science and its
organized processes of reason and experience.
Established subjects of science became
persuasive analogues for explaining any aspect of existence. Relevant to the formation of the
new government, influential thinkers at the time of the Framing would employ scientific
analogies to argue their positions on government structure and policies.
Consider a few
examples. John Adams relied on the argument that a bicameral legislature was like the two
ventricles of the heart, each legislative house performing different functions like each ventricle
of the heart.30 James Wilson noted similarity between the common law and Newtonian physics,
characterizing both as the ―law of experience.‖31 Thomas Jefferson relied on principles of
Newtonian physics in drafting the Declaration of Independence.32
Madison and Hamilton
employed scientific analogies throughout the Federalist Papers.33 Benjamin Franklin recognized
the similarity between the scientific method and democratic procedure, observing that both
required free inquiry, free exchange of ideas, and pragmatism. 34 Such instances of scientific
metaphors in political writings suggest the value that the Framers placed on the explanatory
29
Id. at 130, 133.
30
Id.; COHEN, supra note 14, at 21.
31
Id. at 38. Perhaps relevant to the above discussion, Wilson believed that ―the cultivation & improvement of the
human mind was the most noble object‖ of government and society. 1 THE RECORDS OF THE FEDERAL CONVENTION
of 1787 605 (ed. Max Farrand, 1911) [hereinafter RECORDS] (quoting Wilson at constitutional convention).
32
COHEN, supra note 14, at 116-21 (arguing that phrases in the Declaration of Independence, such as ―laws of
nature‖ and ―self evident,‖ allude to principles of Newtonian physics).
33
E.g., Federalist No. 10, at 58 (James Madison) (Jacob E. Cooke ed., 1961) (comparing liberty and faction to air
and fire); Federalist No. 14, supra note 33, at 87 (comparing states at the frontier to body parts farthest from the
heart that circulates blood); Federalist No. 38, supra note 33, at 242-43 (comparing the fragility of America to a sick
patient).
34
See ROSSITER, supra note 26, at 133, 285-286.
12
power of reason and experience as manifest in natural sciences while debating the social science
of government.35
2. Johnson’s Dictionary
Perhaps the most apparent means for understanding the general meaning of science at the
Framing would be through dictionaries of that period. Well recognized is the fact that Dr.
Samuel Johnson‘s Dictionary of the English Language represents the most comprehensive
compilation of the English language at the time of the Framing. 36
This subsection concludes
that Dr. Johnson‘s entries for science support the general meaning of science discussed above—
an organized process of reason and experience.
In his editions of the Dictionary leading up to the Framing, Dr. Johnson defined science
as follows:
1.
2.
3.
4.
5.
Knowledge.
Certainty grounded on demonstration.
Art attained by precepts, or built on principles.
Any art or species of knowledge.
One of the seven liberal arts, grammar, rhetoric, logick, arithmetic, musick,
geometry, astronomy.37
Dr. Johnson stated these entries in order of their progression in meaning through time, their
chronological etymology—the first being the most primitive and the last the most developed at
that time.38
35
See COHEN, supra note 14, at 27, 28 (―In the sciences, an analogy is usually based on the assumption that there is
a similarity in function or in some other feature between two subjects or branches of science so that concepts,
principles, equations, and theories can be transferred from one to the other.‖) (supporting this proposition by citing
examples of James Clerk Maxwell (1831-1879) employing analogy between theory of gravitation and theory of heat
conduction; Jeremy Bentham (1748-1832) declaring that analogy is major tool of discovery; Charles Darwin
employing analogies in Origin of Species to reach his ultimate conclusion).
36
See, e.g., District of Columbia v. Heller, 554 U.S. 570, 581 (2008) (employing Johnson‘s Dictionary to analyze
meaning of word at time of Framing); Dep‘t of Commerce v. United States House of Representatives, 525 U.S. 316,
347 (1999) (same); WALTERSCHEID, supra note 1, at 125 (relying on Johnson‘s dictionary for meaning of science at
time of Framing); Giles S. Rich, Principles of Patentability, 28 GEO. WASH. L. REV. 393, 396 (same).
37
JOHNSON, supra note 16.
13
Because Dr. Johnson arranged word entries according to their chronological etymology,
the first entry for science—knowledge—does not reflect the most common usage at the time of
the Framing. Knowledge reflects the most primitive meaning for science at the time of the
Framing. Yet that first entry is still relevant in understanding a general meaning of science.
Under that first entry, Dr. Johnson noted two examples that suggest a specific connotation for his
entry of knowledge. The examples consist of a quotation from Henry Hammond that speaks of
―God‘s sight or science‖ as ―seeing every thing as it is‖ and a quotation from Joseph Glanville
that refers to the ―indisputable mathetmatiks‖ as ―the only science Heaven hath yet vouchsafed
humanity.‖39 Both these examples suggest the sort of knowledge that cannot be doubted—God‘s
sight and the indisputable nature of mathematics.
They suggest certainty of conclusion.
According to Dr. Johnson, then, science in its most primitive form meant the sort of knowledge
that results in certainty.
Dr. Johnson explained his second and third entries in a way that further supports the
general understanding of science.40
The second entry is: ―Certainty grounded on
38
Id. at page 6 of preface (unpaginated). See supra note 16. See also ROBERT DEMARIA, JOHNSON‘S DICTIONARY
54 (2000) (referring to the first definition for science as a ―primitive‖ meaning as
compared to the subsequent entries).
AND THE LANGUAGE OF LEARNING
39
JOHNSON, supra note 16.
The quotation that Dr. Johnson employed from Henry Hammond is the following:
If we conceive God‘s sight or science, before the creation, to be extended to all and every part of
the world, seeing every thing as it is, his prescience or forsight or any action of mine, or rather his
science or sight, from all eternity, lays no necessity on any thing to come to pass, more than my
seeing the sun move hath to do in moving of it.
HENRY HAMMOND, OF FUNDAMENTALS IN A NOTION REFERRING TO PRACTISE 161 (London 1654).
The quotation that Dr. Johnson employed from Joseph Glanville is the following:
The indisputable mathematicks, the only science Heaven hath yet vouchsafed humanity, have but
few votaries among the slaves of the Stagirite.
Joseph Glanvill, Scepsis Scientifica: or, Confest Ignorance, The Way to Science in AN ESSAY OF THE
VANITY OF DOGMATIZING, AND CONFIDENT Opinion 142 (Kegan Paul, Trench & Co. eds., 1885).
40
JOHNSON, supra note 16, at page 6 of preface (unpaginated). In the Preface to Johnson‘s Dictionary, Dr. Johnson
explained that one definitional entry should reasonably follow from a previous definitional entry.
14
demonstration.‖41 This suggests the sort of knowledge that arises from experience and its
attendant certainty. The third entry is: ―Art attained by precepts, or built on principles.‖ The act
of building upon principles and precepts implies the act of reasoning. Thus, Dr. Johnson‘s
second and third meanings suggest knowledge deriving from experience and reason.
The fourth and fifth entries suggest a classification of knowledge. The fourth is: ―Any art
or species of knowledge‖; and the fifth: ―One of the seven liberal arts, grammar, rhetoric, logick,
arithmetic, musick, geometry, astronomy.‖ Both of these entries suggest classifying knowledge
into distinct bodies or groupings. They suggest an organized system.
Although these five entries portray distinctions in meanings, they are unified in theme
and general meaning. Indeed, Dr. Johnson noted his intent that each subsequent entry in his
Dictionary build upon the meanings in prior entries.42 Therefore, the fifth and fourth entries,
which suggest a classification of knowledge, build upon the third and second, which suggest
experience and reason as the means for gaining knowledge, which builds upon the first, which
suggests a certainty of knowledge. Taken together, these entries suggest a general meaning of
science: namely, the certain knowledge that derives from reason and experience that yields an
organized grouping of subjects.
B. Science Encompassing Reasons for Colonial Copyright
Science of the Enlightenment, with its organized processes of reason and experience, was
giving rise to an experiment in government—a representative democracy.43 Science had yielded
41
Id.
42
See id. (―[E]very forgoing explanation should tend to that which follows, and the series be regularly concatenated
from the first notion to the last.‖).
43
See id. at 59-60.
15
a culture of liberty and freedom.44 In effect, the new nation represented a republic of science,
built on the principles of reason and experience.45
Given this role of science in the new
democracy, it is not surprising that the Framers felt obligated to continue its proliferation.46
Science had gotten them where they were, and so its continued vitality would seem essential to
holding their course of freedom.
Facing this responsibility to continue the growth of science, the Framers chose copyright
to fulfill that end. But why copyright? What would the Framers have expected copyright to do
44
See COHEN, supra note 14, at 57. The connection between science, knowledge, and liberty George Washington
explained when he addressed the Senate in 1790:
[T]here is nothing which can better deserve your patronage than the promotion of science and literature.
Knowledge is, in every country, the surest basis of public happiness. . . . To the security of a free
constitution it contributes . . . by teaching the people themselves . . . to discriminate the spirit of liberty
from that of licentiousness, cherishing the first, avoiding the last and uniting a speedy but temperate
vigilance against encroachments, with an inviolable respect to the laws.
Library of Congress, Copyright in Congress 1789-1904, Copyright Office Bulletin No. 8, 115-16 (T. Solberg, ed.
1905) (quoting U.S. Senate Journal, 1st Cong. 1 Jan 8, 1790).
45
Thomas Jefferson wrote:
Science had liberated the ideas of those who read and reflect, and the American example had
kindled feelings of right in the people. An insurrection has consequently begun, of science, talents
and courage against rank and birth, which have fallen in to contempt.
Letter of Thomas Jefferson to John Adams (Oct 28, 1813), in THE ADAMS-JEFFERSON LETTERS 391 (ed. Lester J.
Cappon Univ. N. Carolina Press 1959).
Jefferson similarly wrote:
All eyes are opened or opening to the rights of man. The general spread of light of science has
already laid open to every view the palpable truth, that…the mass of mankind has not been born
with saddles on their backs, nor a favored few, booted and spurred, ready to ride them legitimately
by the grace of God.
Letter of Thomas Jefferson to Roger C. Weightman (June 24, 1826), in THE JEFFERSONIAN CYCLOPEDIA 245 (ed.
John P. Foley 1900).
And finally:
We have spent the prime of our lives in [granting young men] the precious blessing of liberty. Let
them spend theirs in showing that it is the great parent of science and of virtue; and that a nation
will be great in both, always in proportion as it is free.
Letter from Thomas Jefferson to Joseph Willard (Mar. 24, 1789), in 14 THE PAPERS OF THOMAS JEFFERSON
699 (Julian P. Boyd ed. Princeton University Press 1958).
46
See ROSSITER, supra note 26, at 130 (―Science and its philosophical corollaries were perhaps the most important
intellectual force shaping the destiny of eighteenth-century America, and the men of America were quick to
acknowledge and eager to repay the debt.‖).
16
as it relates to science? The answer to this question informs the meaning of science. Because
the Framers expected copyright to promote science, instrumental reasons for enacting copyright
laws at that time suggest the effects that they would have expected copyright to yield, which
presumably reflects their expectation that copyright would promote science. That is, reasons for
enacting copyright laws suggest the general contours that the Framers would have associated
with promoting science. That which the Framers would have expected copyright to accomplish
suggests that which the Framers associated with science. Hence, an inquiry into the reasons for
enacting copyright laws in colonial America suggests likely contours that the Framers
contemplated for science. This Section therefore examines the instrumental arguments for
copyright at the time of the Framing.
1. Copyright Statutes
Reasons for enacting copyright laws at the time of the Framing are found in individual
state copyright statutes. Between 1783 and 1786, twelve of the thirteen states had enacted
copyright laws.47 The Framers were likely aware of these statutes, especially given that two
members of the constitutional committee that drafted the Copyright Clause—James Madison and
Abraham Baldwin—were themselves involved in passing their own state copyright statutes.48 Of
the twelve statutes, eleven cited or alluded to instrumental reasons for enacting copyright
protection.49 As discussed below, those reasons reveal two common themes—scholastic learning
and improvement of knowledge.
47
See Copyright Office, Copyright Enactments: Law Passed in the United States Since 1783 Relating to Copyright,
Bulletin No. 3 (revised) [hereinafter Copyright Enactments] 1-21 (Washington 1973). Delaware was the only state
that did not pass a copyright statute. See id. at 21.
48
See infra notes 82 and 88.
49
See Copyright Enactments, supra note 47, at 2-21.
17
The theme of learning in a scholastic or educational sense is perhaps the most prevalent
theme among the state copyright statutes. Several states emphasized learning as a benefit of
copyright with respect to the sort of learning that a learned person has experienced, i.e.,
scholastic or educational attainment. Referring to a person as learned indicates that that person
has studied in a recognized field of knowledge. It does not suggest merely that the person has
perceived a lot of information. Many years of information that an elderly person has perceived
does not qualify him to be described as learned. Hence, statutes that refer to copyright as
existing to encourage the activity of learned persons suggest the sort of learning that is scholastic
or educational.
References to this sort of learning are present in ten state copyright statutes. Connecticut,
Georgia, and New York each explained that copyright encourages ―men of learning and genius
to publish their writings.‖50 Massachusetts, New Hampshire, and Rhode Island likewise linked
copyright with ―the efforts of learned and ingenious persons.‖51 Maryland portrayed the purpose
of copyright as ―for the encouragement of learned men,‖ and Pennsylvania similarly portrayed
copyright as ―for the encouragement of learned men to compose and write useful books.‖52 New
Jersey placed perhaps the greatest emphasis on this sort of learning:
[L]earning tends to the embellishment of human nature, the honour of the nation,
and the general good of mankind …. [M]en of learning who devote their time and
talents to the preparing treatises for publication, should have the profits that may
arise from the sale of their works….53
50
See id. The New York Statute was entitled ―An Act for the Encourage of Literature.‖ See id. at 19.
51
See Copyright Enactments, supra note 47, at 4, 8, 9.
52
Copyright Enactments, supra note 47, at 5.
53
Id. at 6 (emphases added).
18
And although North Carolina never included the word learning in its statute, it cited the closely
related synonym, genius, as a product of copyright.54
Thus, learning in the scholastic or
educational sense represented a prevalent theme throughout state copyright statutes—referred to
in ten of the twelve statutes as an instrumental reason for copyright.
Knowledge also was a common theme among the state statutes. But not any sort of
knowledge.
Specifically, Massachusetts, New Hampshire, and Rhode Island cited the
improvement of knowledge as a reason for copyright, and North Carolina cited knowledge that
was useful. None of the statutes referred to knowledge generally; all references to knowledge
were qualified accordingly.
Thus, four state copyright statutes cited the improvement of
knowledge or the facilitation of useful knowledge as an instrumental reason for copyright.
Although the statutes included other instrumental reasons for copyright, most of those
other reasons represented direct effects of the sort of learning and knowledge discussed above.55
Therefore, to the extent that the Framers construed instrumental reasons for enacting copyright
law at the state level as corresponding with the stated reason for including copyright in the
Constitution—promoting science—science would seem to encompass the two common themes
of the state statutes: educational or scholastic learning and improved or useful knowledge.
54
The fourth entry for genius in the OED appears to apply here: ―Natural ability or capacity; quality of mind; the
special endowments which fit a man for his peculiar work.‖ See 6 OXFORD ENGLISH DICTIONARY 444 (2d ed. 1989)
[hereinafter OED]. Under that entry, the OED then cites an illustration from Benjamin Franklin‘s use of the work in
his 1729 Modest Enquiry: ―Different Men have Genius‘s adapted to Variety of different Arts and Manufactures.‖
Id.
55
Specifically, other reasons for copyright listed in state copyright statutes included the production of literature; the
progress of civilization; the public weal of the community; the advancement of human happiness; and the promotion
of useful discoveries. Only one instrumental reason listed in only one state statute appears less connected to
learning and knowledge, and that is the promotion of commerce. North Carolina mentions commerce as a benefit of
copyright, but tellingly, it describes commerce as merely a ―general extension‖ of copyright, or in other words, an
indirect benefit. Hence, the fact that commerce appears in only one of the twelve statutes, coupled with the fact that
the one statute that does cite commerce expressly qualifies its connection to copyright, suggests that commercial
enterprise would not normally be associated with a benefit of copyright at the time of the Framing. Stated another
way, copyright would not likely be thought of as a means to produce any sort of expression that would promote
commerce.
19
2. Copyright Advocates
Consistent with these two themes found in the state copyright statutes are arguments of
copyright advocates in colonial America.56 Perhaps the most influential advocate for enacting
copyright laws in the individual states was Noah Webster.57
He argued that copyright
proliferates useful knowledge for all citizens, and that this result was desirable to ensure a
successful democracy rather than a failed experiment in government.58
Webster viewed
copyright as necessary for successful self-governance.
Another influential advocate for copyright was Joel Barlow. In a letter to the Continental
Congress,59 Barlow recognized a connection between copyright and ―the sciences.‖60 In that
letter, Barlow argued that copyright was necessary in America because America lacked an
56
For instance, in 1782, during the Revolutionary War, Thomas Paine addressed the issue of statutory copyright
protection in his Letter to the Abbe Raynal. THE LIFE AND WRITINGS OF THOMAS PAINE: ESSAYS, LETTERS,
ADDRESSES 182 (ed. Daniel E. Wheeler 1908). He argued that literature would never flourish if not protected by
copyright, and that because England and America were at war, literature was ―entitled to depredation.‖ In a footnote
to that comment, Paine explained:
[W]hen peace shall give time and opportunity for study, the country will deprive itself of the
honour and service of letters, and the improvement of science, unless sufficient laws are made to
prevent depredation on literary property. It is well worth remarking, that Russia, who, but a few
years ago, was scarcely known in Europe, owes a large share of her present greatness to the close
attention she has paid, and the wise encouragement she has given to every branch of science and
learning….
Id. Copyright, as Paine observed, would allow for ―service of letters‖ and ―improvement of science.‖ Copyright, he
concluded, would serve as a means for ―wise encouragement‖ of ―every branch of science.‖
57
See HARRY R. WARFEL, NOAH WEBSTER: SCHOOLMASTER TO AMERICA 53-59 (1936); FEDERAL COPYRIGHT
RECORDS, supra note 10, at xviii.
58
Id.
59
Barlow wrote the Continental Congress seeking copyright legislation, and his letter ended up in the hands of two
members of that Congress—James Madison and Hugh Williamson—who later served on the constitutional
committee that drafted the Copyright Clause. FEDERAL COPYRIGHT RECORDS, supra note 10, at xiix, xix. The
committee‘s work ultimately resulted in the Continental Congress recommending each state to pass a copyright
statute. Id.
60
Letter from Barlow to Boudinot, 10 Jan. 1783, Papers of the Continental Congress, item 78, 4:369-70, National
Archives and Records Administration [hereinafter Barlow Letter].
20
aristocracy, which in the European countries had enabled persons to devote their lives to study.61
Barlow viewed copyright as promoting the sciences in America because copyright created an
incentive, necessary in America, for the sort of studying that was performed over a lifetime.
Underlying the arguments of Webster and Barlow is the assumption that copyright
promotes knowledge that is valuable, i.e., knowledge that enables self governance and
knowledge that arises from a life of study. To the extent that these reasons for copyright law
suggest the purpose for including copyright in the Constitution—to promote science—the
arguments of Webster and Barlow inform the meaning of science. Science would encompass the
sort of knowledge that is valuable, i.e., that would enable self governance and arise from a life of
study.
The conclusions of these two subsections on the instrumental reasons for copyright thus
suggest contours of science‘s meaning. The state statutes suggest a meaning consistent with
improvement of knowledge or useful knowledge and learning that is scholastic or educational;
the arguments of copyright advocates suggest a meaning that is consistent with knowledge that
enables self governance and knowledge that would result from a life of study. Yet these general
definitional contours do not indicate the precise meaning of science in the Copyright Clause.
They suggest only points of consistency. The precise meaning of science in the Clause should be
consistent with these ideals.
C. Specific Meaning of Science in the Constitution
61
Barlow stated in his letter:
[America] ought to encourage that variety & independence of genius, in which she is not excelled
by any nation in Europe. As we have few Gentlemen of fortune sufficient to enable them to spend
a whole life in study, or induce others to do it by their patronage, it is more necessary, in this
country than in any other, that the rights of authors should be secured by law.
Id.
21
Why did the Framers include science in the Copyright Clause? Certainly the Framers
could have given Congress the power to legislate copyright without mentioning science had they
believed that copyright would promote science as a matter of course. It would seem that the
copyright power could accomplish its purpose even if that purpose were not made explicit. Yet
the Framers explicitly included that purpose. Its presence suggests that they viewed the purpose
as a necessary term to the copyright power. And as a necessary term, science must give
definition to that power. Hence, it appears that the Framers included science in the Clause to
define copyright. So whereas the reason for including copyright in the Constitution was to
ensure the continued proliferation of science, the reason for including science in the Copyright
Clause was to define the scope of copyright. Science begat copyright generally, and copyright
begat science in the Copyright Clause.
Of course this conclusion—that science defines the scope of the copyright power—not
everyone agrees with. Some construe science as a mere preambular introduction that does not
limit the scope of the power.62 Others, however, have persuasively argued that the Framers
intended the phrase ―promote the progress of science‖ as an actual power granted to Congress,
designating the specific means of exercising that power as being copyright.63
Professor
Lawrence Solum has reached this conclusion based on a thorough examination of the
grammatical structure of the Clause in relation to all the powers granted to Congress under
Article I Section 8.64 Simply put, Professor Solum‘s argument is that every other power in
Section 8 grants a power in the first clause beginning with ―To,‖ and so the Copyright Clause
62
See, e.g., NIMMER, supra note 1 § 1.03[A] at 1-91 (―[T]he phrase ‗To promote the progress of science and useful
arts...‘ must be read as largely in the nature of a preamble, indicating the purpose of the power but not in limitation
of its exercise.‖).
63
See Solum, supra note 1, at 12-25.
64
Id.
22
should not be construed any differently. He rejected the argument that the To-promote-theProgress-of-Science language (the Science Clause) could be construed as a preamble
introduction of the actual copyright power, calling the argument ―simply unsustainable.‖65
Professor Dotan Oliar has similarly concluded that the Framers intended the Science Clause to be
a limitation on the congressional copyright power. His analysis has a historical focus, examining
the textual transition from initial proposals at the Convention to the ultimate language in the
Copyright Clause, as well as the political context of the time.66
I agree with these conclusions of Professors Solum and Oliar. The Science Clause is not
preambular in nature such that it must be a specific grant of power that limits Congress. 67 Yet I
do not offer additional proof of that position here. I rely on those that have already written on
this issue in order to observe that if science represents a limitation, it must have meaning.68 And
the more definite the meaning, the more clear the scope of the limitation will be. Hence, to the
65
Id. at 22, 23 (―The erroneously labeled ‗preamble‘ is actually the legally operative grant of power.‖).
66
Oliar, supra note 1, at 1771.
67
Modern jurisprudence of the Supreme Court does not definitively address the issue of whether the Science Clause
represents a limitation on congressional power or, alternatively, a non-limiting preamble. In Graham v. John Deere
Co., 383 U.S. 1, 5-8 (1966), the Court explained in a patent case that ―[t]he [Intellectual Property] Clause is both a
grant of power and a limitation. … Congress in the exercise of the patent power may not overreach the restraints
imposed by the stated constitutional purpose‖). This language suggests that the Court would view the Science
Clause as a limitation. The Court re-iterated this rhetoric in Eldred v. Ashcroft, 537 U.S. 186, 212 (2003) (―[W]e
have described the Copyright Clause as both a grant of power and a limitation, and have said that the primary
objective of copyright is to promote the Progress of Science.‖). Yet also in Eldred, the Court employed language
suggesting that the Science Clause might not be a limitation, but instead only a preambular introduction to the
copyright power. Specifically, the Eldred Court stated: ―petitioners do not argue that the Clause‘s preamble is an
independently enforceable limit on Congress‘ power.‖ Id. at 212. Yet because petitioners did not argue that the
Progress Clause represents a limitation, this quoted statement cannot be construed as a ruling on the issue of whether
the Science Clause is a preamble or a limitation. See Oliar, supra note 1, at 1831 (pointing out that because the
petitioners conceded the issue, the Court in Eldred did not decide whether the Progress Clause limits congressional
authority).
Although modern Supreme Court jurisprudence does not address this issue, the Court has made a broad
statement in District of Columbia v. Heller, 554 U.S. 570, 577 (2008), suggesting a viewpoint. The Heller Court
described the structure of the Second Amendment as a division between an initial preambular clause and a
subsequent operative clause; that division, the Court stated, ―is unique in our Constitution.‖ Id. (emphasis added).
If in fact the Heller Court is correct in its statement that the structure of the Second Amendment is unique, the
Science Clause could not be preambular.
68
See Oliar, supra note 1, at 1771.
23
extent that the Framers intended for the limitation of science to be clear, they must have intended
a meaning that was definite and specific. This Section therefore examines the meaning of
science in the Copyright Clause with a view to understanding the limitation that it places on
copyright.
1. Legislative History
Some of the drafting history of the Copyright Clause sheds light on the meaning of
science. That history began on August 18, 1787, when two delegates at the Constitutional
Convention each proposed a copyright power: James Madison and Charles Pinckney.69 Those
proposals—along with other pending matters—were referred to the Committee on Detail.70 The
Committee drafted the language which was ultimately included in the Constitution as the
Copyright Clause.71
The first two subsections below describe the proposals of Madison and Pinckney that
relate to the copyright power. These subsections suggest that science in the Clause has a
meaning that is educationally or scholastically focused.
The third subsection examines
backgrounds of members of the Committee on Detail. Those backgrounds suggest a familiarity
and priority with education and the sciences that would be consistent with their construing
science in the Clause as denoting an educational meaning.
a. Madison’s Proposals
Madison proposed nine separate congressional powers on August 18, among which were
three relevant to copyright. Those three consisted of the following powers (in the following
order):
69
DOCUMENTS ILLUSTRATIVE OF THE FORMATION OF THE UNION OF THE AMERICAN STATES 563-64 (Charles Tansill
ed. 1927) [hereinafter FORMATION OF THE UNION].
70
See 2 RECORDS, supra note 31, at 473.
71
See 3 RECORDS, supra note 31, at 375-76.
24
―To secure to literary authors their copy rights for a limited time‖;
―To establish an University‖;
―To encourage by premiums & provisions, the advancement of useful knowledge
and discoveries.‖72
Two observations about these proposals are noteworthy as it relates to the meaning of
science. First, Madison appears to have grouped all his proposed powers—not just the ones
listed above—according to their similarity in substance. For instance, his first four proposals
(not listed above) concern jurisdictions for territories or sovereignties that were not in the United
States.73 In the three powers listed above, the copyright power immediately precedes a power
related to formal education and another to useful knowledge. Consistent, then, with Madison‘s
grouping together related powers, the proximity of the copyright power to two powers that deal
with education and useful knowledge suggests the copyright power‘s general scope and
purpose—a context of educational learning.
Second, Madison never used the word science in his proposals. The meaning of science
cannot therefore be directly linked to any of the proposals that Madison set forth. Instead, the
suggestion of educational learning that the three proposals generally suggest can only indirectly
speak to the meaning of science in the Clause. Only if Madison would have equated the reason
for the copyright power in his proposals with the reason for the copyright power in the
Constitution do his proposals suggest an educational connotation of science. That said, it is
72
FORMATION OF THE UNION, supra note 69, at 563.
73
Those first four proposals consisted of the following:
―To dispose of the unappropriated lands of the U. States‖
―To institute temporary Governments for New States arising therein‖
―To regulate affairs with the Indians as well within as without the limits of the U. States‖
―To exercise exclusively Legislative authority at the Seat of the General Government, and over a district
around the same, not exceeding ------ square miles; the Consent of the Legislature of the State or States
comprizing the same, being first obtained‖
Id. at 563.
25
plausible that Madison would have equated the two reasons given that Madison was a member of
the Committee on Detail that drafted the Clause.74
b. Pinckney’s Proposals
Charles Pinckney proposed ten congressional powers on August 18, 1787 among which
were two relevant to copyright. They are the following:
―To establish seminaries for the promotion of literature and the arts & sciences‖;
―To secure to Authors exclusive rights for a certain time.‖75
Pinckney‘s first proposal aids in understanding the meaning of science in the Copyright
Clause. Two observations are noteworthy. First, Pinckney‘s proposal is the only one to use the
word science (in the plural form, though). This suggests that the Committee on Detail adopted
science from his proposal, and thereby implicitly adopted its meaning as well. Indeed, the
proposal employs three words (or a form of those words) that appear in the Copyright Clause:
promotion, arts, and sciences. Notably, those three words do not appear anywhere in Madison‘s
proposals. The similarity between the phrase ―promotion of the arts & sciences‖ in Pinckney‘s
proposal and ―promote the progress of science and useful arts‖ in the Copyright Clause is
remarkable.76 The absence of any other proposal using the three words promote, science, or art,
coupled with the combination of the same three words in proximity to one another in both the
74
Edward Walterscheid argues that Madison used science in the Copyright Clause instead of knowledge because
science is shorter and science suggested the same meaning as knowledge. WALTERSCHEID, supra note 1, at 126.
His basis for this belief appears to be a mistaken view that the word ―science‖ did not appear in any of the proposals
relating to the copyright power. See Edward Walterscheid, To Promote the Progress of Useful Arts: American
Patent Law and Administration, 80 J. PAT. & TRADEMARK OFF. SOC‘Y 11, 38 (1998) (―[T]he words ‗science‘ and
‗useful arts‘ are not to be found in any of those proposals.‖). Although this is technically true, Walterscheid fails to
recognize that the word ―sciences‖ was present in Pinckney‘s proposal for seminaries. In any event, his argument
for Madison‘s use of science over knowledge appears insufficient. Although there is a relationship between useful
knowledge and science, if Madison had meant knowledge in the Copyright Clause, presumably he would have
employed that word because he himself had used it in his own proposal. There is no evidence suggesting that
Madison would have equated science entirely synonymous with knowledge.
75
FORMATION OF THE UNION, supra note 69, at 564. Between the two powers listed, Pinckney also present to other
powers: ―To grant charters of incorporation‖ and ―To grant patents for useful inventions.‖ Id.
76
Similarly, the word ―useful‖ in the Copyright Clause, which modifies the word describing patents—arts—appears
to originate in Pinckney‘s third proposal, ―useful inventions.‖
26
proposal and the Clause, suggests that the three words in the Clause share the same meaning as
in Pinckney‘s proposal—and in particular, the meaning of science.77
Second, Pinckney employed the word sciences in his proposal to convey a general
meaning of education, and a specific meaning of branches of study. The general meaning is
evident from the fact that the proposal calls for the establishment of seminaries, educational
institutions. The specific meaning is evident from the fact that the sciences that seminaries
promote consist of particular branches of study.
c. The Committee on Detail
On September 5, 1787, the Committee on Detail presented the Copyright Clause to the
delegation for approval.78 Unlike other special congressional powers presented to the delegation,
the copyright power was unanimously approved without any (recorded) debate.79 The proposed
language from the Committee on Detail reflects the final language in the Constitution. Hence,
members of the Committee were solely responsible for the final language of the Copyright
Clause. Their backgrounds may therefore illuminate the intended meaning of science.
The Committee on Detail consisted of eleven men.80 At least nine of these men were
well educated in formal institutions, suggesting their familiarity with particular branches of study
that had arisen through the Enlightenment.81
As the educationally elite of that time, it is
77
See Oliar, supra note 1, at 1809-10 (observing that the words ―science‖ and ―arts‖ in the Intellectual Property
Clause derive from Pickney‘s proposal).
78
2 RECORDS, supra note 31, at 505.
79
3 RECORDS, supra note 31, at 375-76.
80
2 RECORDS, supra note 31, at 473. The eleven members consisted of: Abraham Baldwin, John Dickinson, Hugh
Williamson, Rufus King, Roger Sherman, James Madison, Gouverneur Morris, David Brearly, Pierce Butler, Daniel
Carroll, and Nicholas Gilman. Id. This group comprised one from each of the eleven states that were present at the
time of drafting the Clause. Rhode Island did not send a delegate and New York had already left the convention by
this point. See Oliar, supra note 1, at 1790.
81
The above text discusses backgrounds of four of the eleven Committee members. Backgrounds of the other
seven members are as follows:
27
plausible that they would have thought of science as regarding the fields of study that drew upon
reason and experience. Furthermore, the backgrounds of four of these educated men may bear
more directly on science‘s meaning in the Clause. In particular, the histories and views of James
Madison, Abraham Baldwin, John Dickinson, and Hugh Williamson offer insight.
Any view of James Madison on the meaning of science would likely appear the most
authoritative given that he is the only member of the Committee on Detail who proposed a
copyright power (Charles Pinckney was not a
Committee member).
Also, prior to the
Constitutional Convention Madison had served as one of three Virginian legislators who
prepared the Virginia copyright statute and he had served on the three-member Continental
Congress committee that had drafted a resolution recommending individual states enact
copyright statutes.82 After the convention, he is the only Framer to have addressed the copyright
Rufus King graduated first in his class at Harvard College—first in mathematics; first in language; and first
in oratory. ROBERT ERNST, RUFUS KING: AMERICAN FEDERALIST 20 n.25 (1968).
Gouverneur Morris attended the Academy of Philadelphia, at King‘s College. MAX M. MINTZ,
GOVERNEUR MORRIS AND THE AMERICAN REVOLUTION 16 (University of Oklahoma Press 1970).
David Brearly, who was the chair of the Committee on Detail, attended the College of New Jersey (now
Princeton). DONALD SCARINCI, DAVID BREARLEY AND THE MAKING OF THE UNITED STATES CONSTITUTION 44-46
(New Jersey Heritage Press 2005) (the full extent of Brealey‘s studies is a source of disbate).
Roger Sherman was educated in common schools, but was well read in the areas of theology, history, law,
and politics. ROGER SHERMAN BOARDMAN, ROGER SHERMAN SIGNER AND STATESMAN 15-21 (Da Capo Press
1971); BRADFORD, supra note 91, at 22.
Daniel Carroll attended the prestigious College of St. Omer in Flanders for six years, which provided
advanced education for English Catholics. SISTER MARY VIRGINA GEIGER, DANIEL CARROLL A FRAMER OF THE
CONSTITUTION 24-25 (The Catholic University of American Press 1943).
The extent of education of only two Committee members, Pierce Butler and Nicholas Gilman, is uncertain.
Pierce Butler was born in Ireland and came to the United States in 1758 as an officer in the British Army. Little is
known about his formal education. LEWRIGHT B. SIKES, THE PUBLIC LIFE OF PIERCE BUTLER, SOUTH CAROLINA
STATESMAN 2-3 (1979). Interestingly, his presence on the Committee on Detail precluded Charles Pinckney, who
had proposed the copyright power, from serving on the Committee. He was a man of great wealth and considerable
influence. It is known that Nicholas Gilman was educated in public schools. BRADFORD, supra note 91, at 4. He
usually said little and followed the lead of more decisive men. Id.
82
Journal of the House of Delegates of the Commonwealth of Virginia (1781-86), (Richmond, 1828), Session of
October 17, 1785—January 21, 1786, pp. 39, 40. See also BRUCE W. BUGBEE, GENESIS OF AMERICAN PATENT AND
COPYRIGHT LAW 121 (1967). Interestingly, neither of these pieces of legislation referred to science or any other
reason—instrumental or natural rights—for copyright.
28
power in defending the Constitution.83
This history suggests that Madison‘s view on the
Copyright Clause, including the meaning of science, could be paramount to any other member‘s
view.
Madison‘s use of science in writings prior to the Constitutional Convention suggests a
specific meaning. My research revealed seven writings prior to the Convention where Madison
employed the term science or sciences. The context of all seven writings indicate that Madison
employed science to mean a branch of study or category of specialized knowledge as opposed to
mere general knowledge (e.g., ―the Science of Morals‖; ―the most sublime of all Sciences‖; ―the
science of commerce‖).84 Madison‘s use of science after the Constitutional Convention suggests
the same meaning: of 16 instances after the Convention, 14 clearly indicate a particular branch of
83
See Federalist 43.
84
Further excerpts of the seven instances are as follows:
(1) In 1772, Madison wrote: ―I think you made a judicious choice of History and the Science of Morals for
your winter‘s study.‖ Letter from James Madison to William Bradford (Nov. 9, 1772), in 1 THE
WRITINGS OF JAMES MADISON 11 (Gaillard Hunt ed., G. P. Putnam‘s Sons 1900) [hereinafter
MADISON WRITINGS].
(2) In 1773, Madison wrote: ―[K]eep the Ministry obliquely in View whatever your profession be. This
will lead you to cultivate an acquaintance occasionally with the most sublime of all Sciences ….‖
Letter from James Madison to William Bradford (Sept. 26, 1773), in 1 THE PAPERS OF JAMES
MADISON 96 (William T. Hutchinson & William M. E. Rachal eds., University of Chicago Press 1962)
[hereinafter MADISON PAPERS].
(3) In 1773, Madison wrote: ―I intend myself to read Law occasionally and have procured books for that
purpose so that you need not fear offending me by Allusions to that science.‖ Letter from James
Madison to William Bradford (Dec. 1, 1773), in 1 MADISON PAPERS, supra note 116, at 100-101.
(4) In 1779, Madison wrote: ―From a New Arrangement of the College here nothing is in future to be
taught but the higher & rarer branches of Science.‖ Letter from James Madison to James Madison, Sr.
(Dec. 8, 1779), in 1 MADISON WRITINGS, supra note 116, at 56.
(5) In 1783, Madison wrote: ―That of G. B. [Great Britain] is in the science of commerce particularly
worthy of our attention . . . .‖ Letter from James Madison to Edmund Randolph (May 20, 1783), in 1
MADISON WRITINGS, supra note 116, at 467.
(6) In 1783, Madison wrote: ―But his wish is to be introduced in the first instance into a Gentleman‘s
family where he may at the same time be employ‘d in teaching the Languages & some of the more
useful branches of science ….‖ Letter from James Madison to James Madison, Sr. (Oct. 2, 1783), in 7
MADISON PAPERS, supra note 116, at 365.
(7) In 1783, Madison wrote in a Virginia Committee Report: ―[W]ar is become a Science ….‖ Report
from James Madison to Congress (Sept. 19, 1783), in 7 MADISON PAPERS, supra note 116, at 348.
29
study (e.g., ―political science‖; ―science of government‖; ―mathematical science‖; ―law as a
science‖);85 the other two instances are not as clear, but are at least consistent with the particular-
85
The 14 instances are as follows:
(1) ―[B]y dividing & subdividing the branches of Science now in the same group.‖ Letter from James
Madison to Fredrick Beasley (Dec. 22, 1824), in 9 MADISON WRITINGS, supra note 116, at 212.
(2) ―This has always been regarded by us as claiming an important place in so comprehensive a School of
Science.‖ Id.
(3) ―Much may be expected from the progress and diffusion of political science in dissipating errors‖ Letter
from James Madison to Unknown (Mar. 1836), in 9 MADISON WRITINGS, supra note 116, at 610.
(4) ―and to all who take an interest in the progress of political science and the cause of true liberty.‖ James
Madison‘s Will (Apr. 19, 1835), in 9 MADISON WRITINGS, supra note 116, at 549.
(5) ―Our history, short as it is, has already disclosed great errors sanctioned by great names, in political
science . . . .‖ Letter from James Madison to Daniel Drake (Jan. 10, 1835), in 9 MADISON WRITINGS, supra
note 116, at 546.
(6) ―the system forming an innovation and an epoch in the science of Government no less honorable to the
people to whom it owed its birth . . . .‖ Letter from James Madison to Andrew Stevenson (Nov. 27, 1830),
in 9 MADISON WRITINGS, supra note 116, at 430 n.6.
(7) ―To appreciate your proposed expedient for a standard of measures & weights would require more time
than I can apply, & more mathematical Science than I retain.‖ Letter from James Madison to A. B.
Woodward (Sept. 11, 1824), in 9 MADISON WRITINGS, supra note 116, at 207.
(8) ―I know not a better service, that could be rendered to the science of political economy . . . .‖ Letter
from James Madison to Thomas Cooper (Mar. 23, 1824), in 9 MADISON WRITINGS, supra note 116, at 179.
(9) ―that the progress of political Science, and the lessons of experience will not be lost on the National
Council.‖ Id. at 181.
(10) ―Throughout the Civilized World, nations are courting the praise of fostering Science and the useful
Arts, and are opening their eyes to the principles and the blessings of Representative Government.‖ Letter
from James Madison to W. T. Barry (Aug. 4, 1822), in 9 MADISON WRITINGS, supra note 116, at 107.
(11) ―there are some considerations to be taken into the account which have been little Adverted to by the
most oracular Authors on the Science of Govt . . . .‖ Letter from James Madison to John G. Jackson (Dec.
27, 1821), in 9 MADISON WRITINGS, supra note 116, at 76.
(12) ―& as a source perhaps of some lights on the Science of Govt. the legitimate meaning of the
Instrument must be derived from the text itself . . . .‖ Id. at 72 n.1.
(13) ―It is not only desirable therefore that the national code should receive whatever improvements the
cultivation of law as a science may impart but that the local codes should be improved in like manner.‖
Letter from James Madison to Peter S. Du Ponceau (May 1821), in 9 MADISON WRITINGS, supra note 116,
at 63.
(14) ―But a Central Institution is just now on foot in the State of Virga., which in its development will
embrace an extensive circle of Sciences...” Letter from James Madison to Charles Keilsall (Oct. 1817), in 3
LETTERS AND OTHER WRITINGS OF JAMES MADISON 49 (J. B. Lippincott & Co. 1865).
Further instances of Madison‘s use of science may arise in a report he assisted in drafting for the Virginia General
Assembly in 1818. See Report of the Board of Commissioners for the University of Virginia to the Virginia General
Assembly (Aug. 4, 1818), in THE PAPERS OF JAMES MADISON 326-39 (J.C.A. Stagg ed.) available at
http://rotunda.upress.virginia.edu/founders/default.xqy?keys=JSMN-print&mode=TOC. Those instances, however,
30
branch-of-study meaning.86 Madison therefore appears to have consistently employed science in
a manner suggesting particular branches of study.
Although Madison‘s view on the meaning science is certainly worthy of consideration, it
may not be the dispositive authority on its meaning in the Copyright Clause. Tellingly, neither
the copyright power that Madison proposed at the Convention, the Virginia copyright statute that
he prepared, nor the Continental Congress copyright resolution that he helped draft—mention
science. Indeed, no instrumental reason for copyright protection appears in either his copyrightpower proposal, the Virginia copyright statute, or the Continental Congress resolution. Madison
apparently didn‘t think it necessary to mention any reason for copyright—science or otherwise.
Thus, the inclusion of science in the Copyright Clause may not have reflected Madison‘s view.
There is room to argue that others on the Committee were responsible for science appearing in
the Clause.87 Hence, the backgrounds of other Committee members should also be examined for
further indications of science‘s meaning.
Abraham Baldwin came to the Constitutional Convention with rich experience in
copyright, law, and formal education. As a member of the Georgia legislature, he sponsored its
copyright statute, which purported to ―encourage men of learning and genius to publish their
writings.‖88 Baldwin declined a professorship at Yale University to develop an educational plan
for secondary and higher education in Georgia, which led to the creation of Franklin College,
cannot be ascribed to Madison personally, however, because 20 other committee members were also responsible for
the report. See id. at 338-39.
86
The two other instances do not indicate a meaning contrary to branch of knowledge (i.e., referring to the
University of Virginia as ―a temple dedicated to science‖;86 referring to Thomas Jefferson as a ―luminary of
science‖). Letter from James Madison to N. P. Trist (July 6, 1826), in 9 MADISON WRITINGS, supra note 116, at 248
(―But we are more than consoled for the loss, by the gain to him; and by the assurance that he lives and will live in
the memory and gratitude of the wise & good, as a luminary of Science, as a votary of liberty, as a model of
patriotism, and as a benefactor of human kind.‖).
87
Nevertheless, even if Madison is not responsible for its inclusion in the Copyright Clause, Madison‘s use of
science in outside writings suggests his understanding of science‘s meaning in the Clause.
88
See E. MERTON COULTER, ABRAHAM BALDWIN: PATRIOT, EDUCATOR, AND FOUNDING FATHER 43-44 (1987).
31
now called the University of Georgia, of which he was the first president in 1786.89 This
background of copyright legislation and educational promotion supports a view that Baldwin
may have considered the promotion of science as educationally or scholastically focused.90
Background of John Dickinson may also inform the meaning of science. Dickinson was
thought to be one of the most learned men of the Framers.91 He warned against persons who
would ―slight learning.‖92 He once wrote: ―‗Foolish questions,‘ fables, and endless genealogies,
profane and vain babblings, oppositions of science falsely so called, and winds of doctrine the
apostle Paul has justly condemned, and these, to be sure, should be consigned to perpetual
oblivion.‖93 Thus, Dickinson not only appreciated learning, he loathed anything that distracted
from it. Based on his strong opinion of learning, it is likely that Dickinson would not have
viewed the purpose of copyright as promoting any sort of knowledge (e.g., fictional fantasy).
For Dickinson, it is likely that science in the Copyright Clause would have represented a sort of
learning or knowledge with value.
Hugh Williamson was a man of science.94 Prior to the Constitutional Convention, he had
served as a professor of mathematics at the College of Philadelphia; earned his medical doctor
89
Id. at 30, 53-56, 64, 76. Baldwin‘s dedication to science is reflected in his speech before the Georgia House of
Assembly, arguing to establish a university in Georgia: ―public prosperity and even existence very much depends
upon suitably forming the minds and morals of their Citizens.‖ Id. at 54.
90
Baldwin had a close relationship with his brother-in-law, Joel Barlow, who had argued for copyright protection on
the grounds that it was connected to ―the sciences‖ through promoting the sort of knowledge worthy of study. See
Letter of Abraham Baldwin to Joel Barlow, July 26, 1787 (discussing personal affairs and progress of Constitutional
Convention, in a casual tone) in SUPPLEMENT TO MAX FARRAND‘S THE RECORDS OF THE FEDERAL CONVENTION OF
1787 193 (James H. Hutson, ed. 1987); COULTER, supra note 88, at 21-22; FEDERAL COPYRIGHT RECORDS, supra
note 10, at xiix, xix. Also noteworthy is the fact that Noah Webster—a foremost copyright advocate in the United
States—was a student at Yale in 1778 while Baldwin was a tutor there. See COULTER, supra note 88, at 44.
91
See MILTON E. FLOWER, JOHN DICKINSON CONSERVATIVE REVOLUTIONARY, 12-19 (The University Press of
Virginia 1983); M. E. BRADFORD, FOUNDING FATHERS: BRIEF LIVES OF THE FRAMERS OF THE UNITED STATES
CONSTITUTION 99 (2d ed. 1994).
92
CHARLES STILLE, LIFE AND TIMES OF JOHN DICKINSON, 1732-1808 330-31 (1891).
93
Id.
94
See BRADFORD, supra note 91, at 175-76.
32
degree; became a member of the American Philosophical Society;95 served on an official
commission to observe the paths of Venus and Mercury; articulated a theory on climate in North
America; and participated in electrical experiments with Benjamin Franklin.96 Williamson‘s
strong ties to the sciences support a view that Williamson likely would not have construed
science as all possible knowledge, but rather as the sort of knowledge that comprise fields
worthy of study.97
Of course none of this background information about any of the Framers provides a
definitive meaning of science in the Copyright Clause. Yet their backgrounds do suggest a likely
understanding of science that would be consistent with the state copyright statutes, arguments of
copyright advocates, and legislative history discussed up to this point. Their backgrounds
suggest an understanding of science that centers around distinct branches of study and
educational or scholastic processes of learning.
2. Textual Analysis of Science in the Clause
It would seem that the precise meaning of science in the Copyright Clause would be
consistent with the general indicators of science‘s meaning discussed above, including the
historical context of the Enlightenment, Dr. Johnson‘s Dictionary entries, state copyright statutes
of the time, arguments of copyright advocates, legislative history of the copyright proposals at
the Convention, and the backgrounds of the Committee members who drafted the Clause. And
indeed the precise meaning is consistent with the general themes of science that run through the
indicators discussed above. A textual analysis of the Clause reveals that science means a system
of knowledge comprising distinct branches of study. This precise meaning derives from both the
95
The American Philosophical Society was an organization with a purpose to promote useful knowledge in the
sciences and humanities through scholarly research.
96
Id.
97
Id. at 177. One interesting fact is that Williamson opposed Madison on several issues at the Convention. Id.
33
juxtaposition of science and useful arts and the inconsistency between the singular form of
science and the plural form of arts. Together, these two textual evidences signal the precise
meaning of science in the Clause, consistent with the meaning gleaned from the general
indicators discussed above.
a. The Presence of Useful Arts
That the Copyright Clause conjoins science with useful arts implies a specific meaning.
The Oxford English Dictionary (OED) is instructive on this point. Like Johnson‘s Dictionary,
the OED does not list the definitions in order of most common usage.98 Rather, it lists them in
order of chronological etymology.99 The third entry for science, which according to the OED
was in usage during the time of the Framing, is relevant to this analysis.100 It states:
a. A particular branch of knowledge or study; a recognized department of
learning.
b. Contradistinguished from art.101
Subdefinition (b) implies that where science is contrasted with art, it takes on the meaning of the
third definition—a particular branch of knowledge or study; a recognized department of learning.
Such a contrast appears in the Copyright Clause, where the Framers juxtaposed science with
useful arts. This contrast is evidenced by the balance and parallelism of the Copyright (and
Patent) Clause—science, authors, and writings each precedes useful arts, inventors, and
discoveries, respectively, such that the first group corresponds to copyright and the second to
98
DONNA LEE BERG, A GUIDE TO THE OXFORD ENGLISH DICTIONARY 28 (1993).
99
Id.
100
14 OED, supra note 54, at 648-49.
101
The third entry lists two more meanings, neither of which are relevant in the Copyright Clause:
c. the noble science (of defence): the art of boxing or that of fencing.
d. A craft, trade, or occupation requiring traned skill. Obsolete.
Id. It should be apparent that subdefinition (c) does not apply given its reference to fighting. Subdefinition (d) also
does not apply given that it is obsolete, the last use noted in 1660.
34
patent—ultimately suggesting a distinction in meaning between science and useful arts, the
former representing copyright and the latter patent.102
Under subdefinition (b) of science, the OED explains the relationship between science
and art when the terms are used in contrast to each other: ―The distinction [between science and
art] as commonly apprehended is that a science is concerned with theoretic truth, and an art with
methods for effecting certain results.‖103 The OED further defines the meaning of art that
contrasts with science as a ―practical application of any science.‖104 Hence, when science is
contrasted with art, science often means theoretic truth, which derives from a branch of
knowledge, and art often means practical application of that truth.
This understanding is
consistent with the Clause. The Clause employs useful to describe art, suggesting that art should
be understood to be practical in nature. Useful indicates that the meaning of art in the Clause
corresponds with practical application of science. Hence, the juxtaposition of arts that are useful
next to science implies that science must mean the theoretic truth (or branch of knowledge) that
supports the art‘s application.
application of that truth.105
Science as theoretic truth complements art as the practical
Thus, consistent with the OED explanation of the contrasting
meanings between science and art, the meaning of science in the Copyright Clause appears to be
the third entry for science in the OED—a particular branch of knowledge or study; a recognized
department of learning.
102
Cf. DEWOLF, supra note 1, at 15 (introducing balanced nature of Copyright and Patent Clause).
103
14 OED, supra note 54, at 649. See also 1 OED, supra note 54, at 658 (defining art as contrasted with science to
mean a ―practical application of any science‖).
104
1 OED, supra note 54, at 658. The remainder of the definition states ―(in early use also) a body or system of
rules serving to facilitate the carrying out of certain principles.‖ As the references to art under this definition trace
back to the 1300s, 1787 would not seem to qualify as ―an early use.‖
105
The inclusion of useful, to clarify that arts represents a practical application of knowledge, explains the order of
science and useful arts. Had the Committee written ―the progress of useful Arts and Science,‖ useful could have
mistakenly been thought to modify science, which would be incorrect interpretation of science as a theoretical
branch of knowledge.
35
The OED provides further insight into the meaning of science as a particular branch of
knowledge or study. With respect to that definition, it offers the following explanation:
In the Middle Ages, ‗the seven (liberal) sciences‘ was often used synonymously
with ‗the seven liberal arts‘, for the group of studies comprised by the Trivium
(Grammar, Logic, Rhetoric) and the Quadrivium (Arithmetic, Music, Geometry,
Astronomy).106
As a branch of study, then, science suggests a grouping of studies in the same way that liberal
arts would.
(1) Lexicographers of the Time
Science as a particular branch of knowledge or study is consistent with other
lexicography sources of the time. The meaning is apparent in the fourth and fifth definitions
(and thereby most developed meanings in 1787) of science in Johnson‘s Dictionary. The fourth
definition states: a ―species of knowledge.‖107 And the fifth states: ―One of the seven liberal
arts, grammar, rhetoric, logick, arithmetic, musick, geometry, astronomy.‖108 The species of
knowledge along with the particular groupings that Dr. Johnson listed support the OED‘s
definition of science as particular branches of study.
The first edition of Noah Webster‘s Dictionary, published in 1828, includes this meaning.
It states as its second definition:109
106
14 OED, supra note 54, at 648.
107
Id. See also THOMAS SHERIDAN, A COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (6th ed. Philadelphia
1796) (unpaginated) (defining science as ―Knowledge: any species of knowledge‖).
108
JOHNSON, supra note 16.
109
Webster‘s first entry provided a definition for science is consistent with Dr. Johnson‘s first entry for science.
Webster‘s first entry states: ―In a general sense, knowledge or certain knowledge; the comprehension or
understanding of truth or facts by the mind. The science of God must be perfect.‖ NOAH WEBSTER, AN AMERICAN
DICTIONARY OF THE ENGLISH LANGUAGE (New York 1828) [hereinafter WEBSTER‘S 1828 DICTIONARY]
(unpaginated). As discussed above, Dr. Johnson‘s first entry for science was ―Knowledge.‖ JOHNSON, supra note
16; see also discussion supra Part I.A.2. And as further discussed above, Dr. Johnson‘s explanations of that first
entry indicated the sort of knowledge that yielded certainty of conclusion. JOHNSON, supra note 16; see also
discussion supra Part I.A.2.
36
In philosophy, a collection of the general principles or the leading truths relating
to any subject. Pure science, as the mathematics, is built on self-evident truths;
but the term science is also applied to other subjects founded on generally
acknowledged truths, as metaphysics; or on experiment and observation, as
chimistry [sic] and natural philosophy; or even to an assemblage of the general
principles of an art, as the science or agriculture; the science of navigation. Arts
relate to practice, as painting and sculpture.110
Here, Webster explains science as the collection of general principles or truths in a particular
subject matter. This is consistent with the OED‘s description of science as the theoretic truths in
a branch of knowledge that underlie its practical application in an art. Indeed, Webster noted the
relationship between science and art as follows:
In general, an art is that which depends on practice or performance, and science
that which depends on abstract or speculative principles. The theory of music is a
science; the practice of it an art.111
Hence, Webster recognized the specific meaning of science as a theoretic principle or truth that
guides the practical application of the art. His second entry, quoted above, is the only entry to
contrast the meaning of science with art, suggesting that this meaning—principles or truths on a
particular subject matter—is the meaning that comports with the Copyright Clause‘s usage. And
given Webster‘s background as an influential advocate for copyright at the time of the Framing,
it seems likely that he wrote this definition of science, as contrasted with arts, intending it to
reflect the meaning of science in the Copyright Clause that he would have been well familiar
with. In short, Webster‘s definition of science indicates the same meaning as that which the
OED describes—a branch of study or knowledge.
The same meaning appears in the 1752 edition of Ephraim Chambers‘s Cyclopaedia, or
an Universal Dictionary of Arts and Sciences.112 Chambers noted that when science is used in
110
WEBSTER‘S 1828 DICTIONARY, supra note 109 (emphasis in original).
111
Id.
37
opposition to art, it ―is more particularly used for a formed system of any branch of knowledge
comprehending the doctrine, reason, and theory, of the thing, without any immediate application
thereof to any uses or offices of life.‖
113
Hence, Chambers‘ observed that science, when
contrasted with art, suggests a theoretic branch of knowledge.114
(2) Writings of Influential Thinkers of the Time
Writings of the influential thinkers of the time further support this understanding of
science as representing particular branches of study. Consider a letter of John Adams to his wife,
which states: ―The science of government it is my duty to study, more than all other sciences; the
arts of legislation and administration and negotiation ought to take place, indeed to exclude, in a
manner, all other arts.‖115 Here, government is the abstract branch of study, the science. The
applications of that science are the practical activities of government, the arts of legislation,
administration, and negotiation.
James Madison‘s use of science is also instructive. As I explain above (Part I.C.1.c), all
of the seven instances where Madison employed science in writings prior to the Constitution
112
EPHRAIM CHAMBERS, CYCLOPÆDIA, OR, AN UNIVERSAL DICTIONARY OF ARTS AND SCIENCES 32 (1728).
Professor Bernard Cohen associated this meaning in Chambers‘ Cyclopaedia with the meaning of science in the
Copyright Clause. See COHEN, supra note 14, at 306.
113
CHAMBERS, supra note 112, at 32.
114
Based on this analysis of Chambers, Professor Cohen concluded that the meaning of science in the Copyright
Clause must be ―theoretical or general principles of practice that are associated directly with useful inventions or
that lead to economic benefits or financial rewards.‖ COHEN, supra note 14, at 308. This conclusion makes sense,
up to the point of association with useful inventions. Cohen provided no support for the association with ―economic
benefit‖ or ―financial rewards.‖ Nevertheless, the main point of Cohen‘s conclusion, which he made explicit, is that
science in the Copyright Clause has a much narrower definition than the broadest possible definition of the day. Id.
at 308. This conclusion essentially contravenes the present interpretation of courts and most scholars. It is
unsurprising, then, that Edward Walterscheid disagreed with Cohen‘s conclusion, contending that Cohen was
attempting to ―read the copyright provision out of the clause.‖ WALTERSCHEID, supra note 1, at 130. Yet
Walterscheid failed to cite any contrary evidence that Cohen‘s conclusion was incorrect. Indeed, the only reason
that Walterscheid cited as a basis for disagreeing with Cohen was the fact that Cohen‘s conclusion was ―obviously at
odds with the usual judicial interpretation.‖ WALTERSCHEID, supra note 1, at 130.
115
Letter from John Adams to Abigail Adams (without date, 1780), in FAMILIAR LETTERS OF JOHN ADAMS AND HIS
WIFE ABIGAIL 381 (Charles Francis Adams ed. 1876) (emphasis added).
38
indicate that he employed the meaning of branch of knowledge or study.116 Similarly, most if
not all of the sixteen instances where Madison employed science in writings after the
Constitutional Convention indicate the same meaning.117
Charles Pinckney‘s use of science in his proposal of the copyright power is also
instructive. As discussed above, Pinckney proposed a copyright power in conjunction with
another education-focused proposal: ―To establish seminaries for the promotion of literature and
the arts & sciences.‖118
Because Pinckney referred to sciences in the plural, it implies a
definition consistent with branches of knowledge rather than simply general knowledge, for it
would not make sense to speak of general knowledges. The plural form of science implies more
than one grouping of study. Sciences in the plural always refers to branches of study.
This definitional characteristic of the plural form of science as meaning branches of study
indicates that the state copyright statutes that mentioned science portrayed the meaning of branch
of study. The statutes that mention science—those of Massachusetts, New Hampshire, Rhode
Island, and South Carolina—all employ the plural form of science. They all imply science as a
branch of study or knowledge.119
That many writings of influential thinkers refer to science as a branch of study makes
sense.120 The Enlightenment arose out of organized study of particular subjects. It did not arise
116
See discussion supra Part I.C.1.c.
117
See discussion supra Part I.C.1.c.
118
FORMATION OF THE UNION, supra note 69, at 564.
119
See Copyright Enactments, supra note 47, at 4, 8, 9, 11.
For instance, Alexander Hamilton referred to the ―sciences of morals and politics.‖ The
Federalist No. 31, at 195 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). Ben Franklin wrote:
―Will not the Knowledge of the Mathematicks, Astronomy, and Natural Philosophy, those
sublime Sciences, give a Right to the Character of a Man of Sense?‖ BENJAMIN FRANKLIN, A
MAN OF SENSE (1735), reprinted in 2 THE PAPERS OF BENJAMIN FRANKLIN 16 (Leonard W.
Labaree ed. Yale University Press 1960).
120
39
because of greater informational awareness, but rather because of an organized study of
particular subject matter. This is the science that the influential thinkers of that time ascribed to
the recipe for liberty, and so this is the science that pervades their writings. This must be the
science that they sought to promote in the Constitution.
b. The Singular-Plural Inconsistency
The singular form of science suggests additional meaning. Science in the singular form
usually signifies only one branch of study; expressing multiple branches of study would usually
require employing the plural form. Yet the Copyright Clause employs science in the singular,
and presumably the Clause does not signify only one particular branch of study when it mentions
science. So if science represents branches of study, why isn‘t it in the plural?
This question becomes even more pressing given that the Committee on Detail likely
deliberately chose to place science in the singular rather than the plural. Recall that the only
reference to science in the proposals under consideration was Pinckney‘s proposal, which
referred to sciences in the plural.121 Recall also that all four of the state copyright statutes that
employed science did so in the plural.122 Recall that the Copyright Clause reflects great attention
to stylistic consistency, yet science in the singular form creates a glaring stylistic inconsistency
This is not to say, of course, that this meaning of science was the only one that any Framer employed.
Several employed it so as to suggest the broader meaning of general knowledge. Thomas Jefferson wrote: ―[Y]ou
are indebted . . . to his worth and science which marked him for notice.‖ Letter from Thomas Jefferson to Mary B.
Briggs (Apr. 17, 1816), in 1 COLLECTIONS OF THE MASSACHUSETTS HISTORICAL SOCIETY, SEVENTH SERIES 256
(Charles Card Smith et al., eds. 1900). Again Jefferson wrote: ―[H]e may be liable to gross error and imposition in
distinguishing characters of the degree of science we seek....‖ Letter from Thomas Jefferson to Samuel Parr (Apr.
26, 1824), in 18 THE WRITINGS OF THOMAS JEFFERSON 330 (Andrew Adgate Lipscomb & Albert Ellery Bergh eds.
1903). Benjamin Franklin wrote: ―[W]e see how long even philosophers, men of extensive science and great
ingenuity, can hold out against the evidence of new knowledge ….‖ Letter from Benjamin Franklin to John
Winthrop (July 2, 1768), in 4 THE WORKS OF BENJAMIN FRANKLIN 177 (John Bigelow ed. G. P. Putnam‘s Sons
1887). Or John Dickinson, a member of the Committee on Detail, was unclear the precise meaning of science when
he labeled foolish questions, fables, and endless genealogies as ―oppositions of science falsely so called.‖ See
STILLE, supra note 92, at 330-31.
121
FORMATION OF THE UNION, supra note 69, at 564.
122
Copyright Enactments, supra note 47, at 4, 8, 9, 11.
40
as it appears next to the plural arts.123
The inconsistency becomes more apparent when
considering the fact that—except for science—all nouns in the Clause unique to either the
copyright or patent powers are in the plural.124 Thus, the departure from the plural form in
Pinckney‘s proposal, the departure from the plural form in the state copyright statutes, and the
blatant stylistic inconsistency of the singular form all indicate a deliberate choice to make
science singular. Why?
It appears that by placing science in the singular, the Committee on Detail intended a
meaning distinct from the plural sciences. The singular form represents an abstraction of all the
particular branches. It represents the collective whole of all branches. This meaning is apparent
in an analogous context—the word, law. In the singular, law may represent the collective whole
of all possible laws; it is a general abstraction of all the particular laws: for instance, the law (as a
general concept) restrains conduct.125 In the plural, laws represent specific laws: for instance, the
laws restrain conduct. Hence, there are two ways to express the entirety of a set of subjects—the
singular abstraction (e.g., law or science) and the plural particulars (e.g., laws or sciences).
These two ways of expressing the collection of subjects admit a distinction in meaning.
The meaning of the singular abstraction includes the collective whole of the particulars, but the
meaning of the plural particulars does not. The sum is greater than its parts. Therefore, a
representation of the collective whole suggests more than its individual parts. Law suggests
more than laws. Science suggests more than sciences. Science as a representation of the
123
The words relating to copyright precede the words relating to patent (science, authors, and writings respectively
precede useful arts, inventors, and discoveries). For a discussion on the balance and parallelism of the Intellectual
Property Clause, see discussion and sources cited supra note 1.
124
See U.S. CONST. art. I, § 8, cl. 8 (―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….‖). Although the
word right is in the singular, it is not specific to either the copyright or patent powers.
125
THE WOLTERS KLUWER BOUVIER LAW DICTIONARY 619 (Stephen Michael Sheppard ed., 2011).
41
collective whole of all specific branches of study captures a system that derives from all those
specific branches.
Whereas sciences in the plural represents only the individual sciences
operating independently of the others, science in the singular represents the entire system of all
possible particular sciences functioning together as one. Stated another way, science in the
singular form represents the system that derives from the whole of all branches of knowledge.
The Committee on Detail thus appears to have placed science in the singular form to
capture the abstract meaning of all branches of science, or in other words, the system that derives
from the particulars.
This reason for placing it in the singular further explains why the
Committee kept arts in the plural, purposefully creating an inconsistency between science and
arts. As discussed above, useful arts means the practical applications that derive from the
theoretic truth contained in the sciences.126 Stated another way, abstracting from the specific
practical applications of the useful arts implies only the sciences that underlie those arts. There
is nothing to abstract from specific applications of useful arts that would not be captured within
the abstract term of science. It would make no sense, then, to place useful arts in the singular
form as representing an abstraction of those arts. The Committee apparently intended that the
meaning of all the individual applications of science—i.e., the useful arts—imply nothing more
than all those individual applications. They apparently did not view all those applications as
yielding a unified process, as in science.127
This interpretation of science in the singular is supported by Hugh Williamson, a member
of the Committee on Detail. Williamson wrote:
126
See discussion supra Part I.C.2.a.
127
The distinction between theoretic science and practical application of arts may suggest the ordering of science
before arts in the Clause, which contravened the order proposed by Pinckney and for that matter, the order that the
four state copyright statutes employed—i.e., arts and sciences. The order in the Clause suggests that theoretic truth
precedes practical application.
42
[T]he Grecians exceeded all other nations in arts and learning. The Grecians, or
rather the Athenians, were not indebted to soil or climate for the extraordinary
progress they made in science and the liberal arts; they were merely indebted to
the high degree of liberty they enjoyed.128
Here, Williamson appears to employ both science and liberal arts as words meaning a group of
theoretical studies. Both are collective nouns. Yet science is in the singular and liberal arts in
the plural, suggesting that science represents the system of the grouping of studies, whereas
liberal arts represents the seven specific groupings that then comprised all possible liberal arts
(grammar, rhetoric, logic, arithmetic, music, geometry, and astronomy).129
An implication of construing science to mean a system that derives from a collective
whole is that science would include branches not yet in existence—i.e., evolving branches. The
system as a whole contemplates additions and changes to the component parts. It is broader than
its individual pieces. Science, then, would not be limited to only the branches of study that
existed at the Framing; it would contemplate growing and evolving categories.
Support for this interpretation arises in the writing of John Adams. Adams alluded to this
principle of evolving branches of knowledge in a letter to Abigail Adams in 1800, while
President of the United States. He wrote:
I must study politics and war, that my sons may have liberty to study mathematics
and philosophy, geography, natural history and naval architecture, navigation,
commerce, and agriculture, in order to give their children a right to study painting,
poetry, music, architecture, statuary, tapestry, and porcelain.130
128
Hugh Williamson, Member, New York Historical Soc‘y, A Discourse on the Benefits of Civil History, delivered
before the New-York Historical Society (Dec 6, 1810), in 2 COLLECTIONS OF THE NEW-YORK HISTORICAL SOCIETY,
FOR THE YEAR 1814, 30-31 (Van Winkle & Wiley 1814).
129
See JOHNSON, supra note 16 (listing the seven liberal arts as the fifth entry for science).
130
Letter from John Adams to Abigail Adams (without date, 1780), in FAMILIAR LETTERS OF JOHN ADAMS AND HIS
WIFE ABIGAIL 381 (Charles Francis Adams ed. 1876) (emphasis added).
43
Adams thus spoke of a potential for expanding fields of study. He recognized that the result of
refining existent branches of study is the creation of more branches. And that idea appears to be
present in the singular form of science.
This characteristic of evolving branches of study in the system of science suggests that
the system contemplates mere attempts at establishing a branch of knowledge, even if those
attempts are unsuccessful. The attempt to create a category of knowledge is part of the process
of evolution in the system.
Therefore, the system would recognize organized attempts at
establishing certain conclusions, even where those attempts may not actually result in
certainty.131 Science as a system that derives from branches of knowledge admits error insofar as
the error resulted from an attempt to reach certain conclusions.
Thus, the Framers appear to have intended science in the Copyright Clause to represent a
system of knowledge comprising distinct branches of study.
As discussed in the immediate
preceding subsection, science‘s meaning as distinct categories of knowledge or branches of study
is apparent from the juxtaposition of science and useful arts. And as discussed in this subsection,
science‘s meaning as a system is apparent from its singular form that represents an abstraction of
the entire set of branches of knowledge. Science in the Copyright Clause therefore represents a
system of knowledge comprising distinct branches of study.
3. The 1790 Copyright Act
Congress enacted the first federal copyright statute in 1790. That 1790 Act suggests the
original understanding of the Copyright Clause given the Act‘s close proximity to the ratification
131
This implication is consistent with the principle of trial and error in the scientific method. Indeed, it is a
foundational principle for all branches of knowledge: the truth of a proposition need not be established; the
proposition need merely be directed at truth. See CHARLES SANDERS PEIRCE, ESSAY ON PRAGMATISM AND
PRAGMATICISM CHAPTER 5 TRUTH, in 5 COLLECTED PAPERS OF CHARLES SANDERS PEIRCE 388-98 (Charles
Hartshorne & Paul Weiss eds., Harvard University Press 1934).
44
of the Constitution.132 And although the Act does not specifically define science, it provides
evidence of its meaning in two ways: first, it states learning as its purpose; and second, it
provides relatively limited coverage to works.
The purpose of the 1790 Act is set forth in its title: ―An Act for the Encouragement of
Learning.‖133 Important here is the meaning of learning. Learning at the time of the Framing did
not mean the acquisition of any information. Rather, learning suggested the acquisition of
scholastic information. Dr. Johnson‘s Dictionary defines learning as:
1. Literature; skill in languages or Sciences; generally Scholastick knowledge.
2. Skill in any thing good or bad.134
Both definitions preclude an understanding of learning that would represent acquisition of any
information.
The first definition of learning suggests either a skill (of either letters—i.e.,
literature135—or languages or sciences) or scholastic knowledge. Likewise the second definition
of learning implies a skill (in anything good or bad). Johnson therefore defines learning in terms
of skills and scholastic knowledge. Skill suggests an aptitude or ability; 136 scholastic knowledge
suggests an acquisition of educational information.137 Both imply meanings much narrower than
mere acquisition of information. Hence, the title of the 1790 Copyright Act, ―An Act for the
132
See Burrow Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57 (1884) (―The construction placed upon the
constitution by the first act of 1790 and the act of 1802, by the men who were contemporary with its formation,
many of whom were members of the convention which framed it, is of itself entitled to very great weight ….‖).
133
The full title of the 1790 Copyright Act states: ―AN ACT for the encouragement of learning, by securing the
copies of maps, charts, and books, to the authors and proprietors of such copies, during the times therein
mentioned.‖ Copyright Enactments, supra note 47, at 22.
134
JOHNSON, supra note 16.
135
Johnson defines literature as ―learning; skill in letters.‖ Id.
136
See 15 OED, supra note 54, at 603-04 (defining skill as, inter alia, ―[c]apability of accomplishing something with
precision and certainty; practical knowledge in combination with ability; clerverness, exepertness. … [A]n ability to
perform a funcition, acquired or learnt with practice‖).
137
See 14 OED, supra note 54, at 630 (defining scholastic as, inter alia, ―studious, learned‖; ―[h]aving the
characteristics of the scholar or student, as distinguished from the man of affairs‖); 8 OED, supra note 54, at 517-18
(defining knowledge as, inter alia, ―[a]cquaintance with a branch of learning, a language, or the like; theoretical or
practical understanding of an art, science, industry, etc;‖).
45
Encouragement of Learning‖ suggests that the 1790 Congress viewed the purpose of copyright
as encouraging skills or scholastic knowledge.
The subject matter of the Act is consistent with understanding science as focusing on
branches of study rather than on the creation of any expression. The Act offered copyright
protection for any ―map, chart, book or books already printed‖—and nothing else.138 Although
the meaning of books at that time (a written document) was broader than today‘s common
definition,139 the Act still would not have provided protection for common methods of exhibiting
creativity, such as sculptures, paintings, and performances. Indeed, one Justice of the Supreme
Court in 1829 doubted that the 1790 Act covered even newspapers, which comprised an
important component of public dialogue at the Framing.140 The 1790 Act thus ignores several
means of creative expression of the time. That apparently purposeful exclusion suggests that the
Act did not aim to promote creativity for the sake of promoting creativity. This absence of focus
on creativity for its own sake is consistent with its purported focus on scholastic learning.
II. The Meaning of Science After the Framing
Following the Constitutional Convention, science appears to have retained a strong
discriminatory meaning.
Courts denied protection to works that did not comport with the
original meaning; Congress enacted legislation consistent with the meaning; and the public
registered works tending to support the meaning. Over time, however, courts, Congress, and the
public softened the discriminatory force of the original meaning of science. Courts denied
protection only where a work‘s purpose was categorically inconsistent with science; Congress
138
Copyright Enactments, supra note 47, at 22.
139
See 2 OED, supra note 54, at 393.
140
See Clayton v. Stone, 5 F. Cas. 999, 1003 (C.C.S.D.N.Y. 1829 (No. 2872) (Thompson, J.) (―Although great
praise may be due to the plaintiffs for their industry and enterprise in publishing this paper, yet the law does not
contemplate their being rewarded in this way; it must seek patronage and protection from its utility to the public and
not as a work of science.‖).
46
extended both the rights and the sort of works protected beyond those necessary to promote
science; the public registered works whose purposes arguably did not support any branch of
study, or in other words, any science. Yet despite this softening of science, science did retain a
meaning that discriminated against the subject matter of works. Courts still refused protection
for narrow and obvious purposes that were categorically inconsistent with science.
changed, however, during the latter part of the twentieth century.
This
Modern courts began
construing copyright in a way that protected any sort of subject matter—even obscenity and
libel. Science lost any sort of meaning that would discriminate against content.
This Part traces this history. Section A examines the treatment of science in the first
relevant period, the contemporaries of the Framers. Section B examines treatment of science
during the remainder of the nineteenth century and into the mid-twentieth century. Section C
examines the treatment by modern courts and congresses.
A. Contemporaries of Framers
After the Framing, contemporaries of the Framers treated science according to its original
understanding.
It appears that science required a work to have a purpose that either was
instructive in nature or served a branch of study. For instance, works serving only to promote
commercial profit (e.g., advertising), to provide informational awareness (e.g., a newspaper), or
to entertain (e.g., fictional fantasy) would not have satisfied the meaning of science and
accordingly would not have been not copyrightable. This Section examines treatment by the
public, congress, and courts, with respect to persons who were contemporaries of the Framers at
the time of the Framing.
1. The Public
Treatment of science by the public, contemporary to the Framers, is evident in the works
that were registered in the decade following ratification of the Constitution. Before examining
47
those works, it is important to realize that unlike the registration process today where the
Copyright Office performs an initial determination as to whether a work should receive
protection, the registration process under the 1790 Act did not involve such a determination: an
author merely filed a claim at the local federal district court.141 Anything could be registered,
even if it fell outside the scope of protection. Coupled with this background, the types of works
registered at the time suggest the public understanding of the sorts of works copyright would
protect.
In 1987, James Gilreath and Elizabeth Carter Wills performed a detailed examination of
federal copyright records from 1790-1800. Gilreath observed a great imbalance in the types of
works registered.142 Regarding ―serious imaginative works,‖ Gilreath observed ―only a handful‖
registered.143 By contrast, practical or commercially useful books constituted a majority of those
registered.144
Textbooks, manuals, geographical atlases, and commercial directories were
common.145
Interestingly, although such practical works constituted a high proportion of
registered material, they did not reflect the same proportion of printed work of the time.146
Imaginative works were noticeably missing in the federal registration records. 147 Tellingly,
imaginative works were not missing in state registration records.148 These observations suggest
141
See FEDERAL COPYRIGHT RECORDS, supra note 10, at xxii.
142
See id.
143
See id.
144
See id.
145
See id.
146
See id.
147
See id.
148
See id. (―[A] larger proportion of state copyright registrations than federal registrations were for imaginative
works.‖).
48
an understanding that copyright did not cover any sort of work, but rather only those that were
instructional or associated with specific branches of study.
2. Congress
As discussed above, Congress in 1790 passed the first copyright statute. The purpose of
that Act was evident in its title, ―An Act for the Encouragement of Learning.‖
Learning
suggested a scholastic or educational connotation, consistent with a meaning of science that
represents a system of knowledge comprising distinct branches of study.149
In addition to the 1790 Act, Congress in 1802 amended that Act to include ―historical and
other prints‖ as a permissible medium for copyright.150 Including prints as a permissible medium
for copyrightable works does not directly speak to what sort of subject matter could be
copyrighted in those prints, consistent with the meaning of science. But the amendment does
indicate the sort of subject matter that would be permissible for a copyrightable print, i.e., a
historical print. And the subject matter of history would have been considered a branch of study
at that time—a science. Although Congress did not limit the scope of copyrightable prints to
those dealing with history, its language suggests that this was the sort of print that Congress
would have considered copyrightable. Had the 1802 Congress intended for all prints to receive
protection, it would have been unnecessary to include the example of a historical print.
3. Courts
There are no American courts that treated the meaning of science in the Copyright Clause
during the contemporary period of the Framers. There was, however, such a case in 1829, which
would have occurred closely after most of the Framers had died. Moreover, the 1829 case,
Clayton v. Stone, was written by a judge who was a young contemporary of the Framers. The
149
See discussion supra Part I.C.3.
150
Copyright Enactments, supra note 47 at 24-25.
49
judge was Justice Smith Thompson of the Supreme Court, who was twenty years old at the
Constitution‘s ratification.151 In 1829, he sat by designation as a Circuit Justice for the federal
court in the Southern District of New York, hearing the Clayton case. Clayton raised the issue of
whether a price-current—a weekly publication of market prices—was copyrightable in view of
the restricting term, science, in the Copyright Clause.152
Justice Thompson denied protection for the price-current on the grounds that it did not
satisfy the meaning of science.153
He explained that because Congress passed the 1790
Copyright Act in execution of its power under the Copyright Clause, that Act‘s object was
necessarily to promote science, and the price-current did not do so.154 In his words:
[I]t would certainly be a pretty extraordinary view of the sciences to consider a
daily or weekly publication of the state of the market as falling within any class of
them. They are of a more fixed, permanent, and durable character. 155 The term
science cannot, with any propriety, be applied to a work of so fluctuating and
fugitive a form as that of a newspaper or pricecurrent, the subject-matter of which
is daily changing, and is of mere temporary use.
This quotation demonstrates that Justice Thompson considered science in the Copyright Clause
as referring to ―the sciences‖—i.e., branches of study. As branches of study, science required a
work‘s subject matter to be ―fixed, permanent, and durable.‖156 Justice Thompson expressly
opined that science could not apply to works that were ―fluctuating and fugitive,‖ ―daily
changing‖ or of ―mere temporary use.‖157
151
Gerald T. Dunne, Smith Thompson, in 1 THE JUSTICES OF THE UNITED STATES SUPREME COURT 1789-1969:
THEIR LIVES AND MAJOR OPINIONS (Leon Friedman & Fred L. Israel eds., 1969).
152
5 F. Cas. 999, 1003 (S.D.N.Y. 1829).
153
Id.
154
Id. Justice Thompson impliedly distinguished useful arts from science here. See id.
155
Id.
156
Id.
157
Id.
50
Also notable about Justice Thompson‘s opinion is that he recognized that public utility of
a price-current, as well as the diligent labor that it took to produce it, does not give rise to
copyright protection absent a connection with ―learning and the sciences.‖158 Science as a fixed,
permanent, and durable subject is necessary for protection regardless of whether the expression
is valuable according to some other means of measurement, so taught Justice Thompson. Thus,
the respected judicial contemporary of the Framers, Justice Smith Thompson, understood science
to require works to have a purpose that served an established branch of study.
B. From Mid-Nineteenth to Mid-Twentieth Centuries
After the period of the Framers and well into the twentieth century, the public, congress,
and courts loosened the discriminatory force that science placed upon copyrightable subject
matter. Science weakened in comparison to its apparent treatment by contemporaries of the
Framers. It did not preclude as many sorts of works as it initially had. For instance, during this
period, copyright extended to works of entertainment or familiar discourse—an unlikely subject
of copyright in the period contemporary with the Framers.
Science weakened; copyright
expanded.
Despite the weakening of science during this period, science did not entirely lose its
discriminatory force. Science did continue to represent a restriction on the subject matter of
copyright. Where a work‘s purpose was categorically inconsistent with promoting branches of
study—purposes such as a libelous, indecent, or advertising—courts denied protection. Courts
158
In Justice Thompson‘s words:
Although great praise may be due to the plaintiffs for their industry and enterprise in publishing
this paper, yet the law does not contemplate their being rewarded in this way: it must seek
patronage and protection from its utility to the public, and not as a work of science. The title of the
act of Congress is, ' for the encouragement of learning,' and was not intended for the
encouragement of mere industry, unconnected with learning and the sciences.
Id.
51
recognized that a narrow and obvious group of purposes fell outside of science, and accordingly
upheld science‘s meaning to an extent.
1. The Public
It is difficult to say with any certainty how the public treated science in the Copyright
Clause after 1800. With regard to works registered after 1800, there is no comprehensive record
or study of the sorts of works registered. Nevertheless, there are indications. Early copyright
decisions indicate the sort of works copyrighted, and from the late 1820s to 1850, those works
nearly all appear to be consistent with the original meaning of science (with the exception of the
price-current in Clayton v. Stone discussed above). They include a geographical chart in 1828,159
legal reports of cases argued in 1834,160 a book about proper grammar usage in 1839,161
biographical writings of a president in 1841,162 an arithmetic book in 1845,163 a musical
composition in 1845,164 a legal treatise in 1847,165 a floral dictionary in 1847,166 and another
musical composition in 1850.167
Yet although copyrighted works in the case law up to 1850 suggests that the public
registered only those works the closely adhered to the meaning of science, the novel and other
creative fictional works were gaining acceptance during this time.168 Although at the time of the
159
Blunt v. Patten, 3 F. Cas. 762, 762 (S.D.N.Y. 1828) (No. 1,579).
160
Wheaton v. Peters, 33 U.S. 591, 593 (1834).
161
Gray v. Russell, 10 F. Cas. 1035, 1037 (D. Mass. 1839) (No. 5,728).
162
Folsom v. Marsh, 9 F. Cas. 342, 345 (D. Mass. 1841) (No. 4,904).
163
Emerson v. Davies, 8 F. Cas. 615 (D. Mass. 1845) (No. 4,436).
164
Reed v. Carusi, 20 F. Cas. 431 (D. Md. 1845) (No. 11,642).
165
Story v. Holcombe, 23 F. Cas. 171 (D. Ohio 1847) (No. 13,497).
166
Webb v. Powers, 29 F. Cass. 511 (D. Mass. 1847) (No. 17,323).
167
Jollie v. Jaques, 13 F. Cas. 910, 913 (S.D.N.Y. 1850) (No. 7,437).
168
See HERBERT ROSS BROWN, THE SENTIMENTAL NOVEL IN AMERICA 1789-1860 3-8 (1940).
52
Framing, such works would not have been considered as promoting the sciences,169 following the
Framing their authors were seeking copyright protection.170 Indeed, by the latter half of the
1800s, works of fiction were comfortably enjoying copyright protection:171 Harriet Beecher
Stowe‘s romantic novel, Uncle Tom’s Cabin, was registered for protection in 1852;172 and to no
one‘s surprise, Samuel Clemens registered The Adventures of Tom Sawyer.173 Comedic and
dramatic plays also appeared in the latter 1800s,174 as did photographs that served only aesthetic
169
In 1824, author James McHenry recounted the uniform antagonism toward fiction in just one generation earlier:
In those days, it was almost as disreputable to be detected reading a novel, as to be found betting at a cockfight, or a gaming table. Those who had sons would have supposed them forever incapacitated for any
useful pursuit in life, if they exhibited an inclination for novel reading; and those who had daughters who
exhibited such an inclination, would have considered them as totally unfitted for ever becoming good wives
or mothers.
AMERICAN MONTHLY MAGAZINE (Philadelphia 1824), II, 1-2.
On this point, many influential thinkers articulated disdain for fictional works of entertainment. Thomas Jefferson
wrote:
A great obstacle to good education is the inordinate passion prevalent for novels, and the time lost
in that reading which should be instructively employed. When this poison infects the mind, it
destroys its tone and revolts it against wholesome reading. Reason and fact, plain and unadorned,
are rejected. Nothing can engage attention unless dressed in all the figments of fancy, and nothing
so bedecked comes amiss. The result is a bloated imagination, sickly judgment, and disgust
towards all the real businesses of life.
THE WRITING OF THOMAS JEFFERSON 166 (ed. A.A. Lipscomb (1803)).
170
See, e.g., SEBA SMITH, DEW-DROPS OF THE NINETEENTH CENTURY: GATHERED AND PRESERVED IN THEIR
BRIGHTNESS AND PURITY ii (1846) (noting federal copyright registration).
171
Of course the public continued to register for protection works with a purpose that was instructive or that
furthered a branch of study. See, e.g., Perris v. Hexamer, 99 U.S. 674 (1878) (map); Drury v. Ewing, 7 F. Cas. 1113
(S.D. Ohio 1862) (No. 4,095) (chart of how to take measures for and cutting women‘s dresses); Lawrence v. Dana,
15 F. Cas. 26 (D. Mass. 1869) (No. 8,136) (legal treatise on international law).
172
See HARRIET BEECHER STOWE, UNCLE TOM‘S CABIN (John Cassell 1852); Stowe v. Thomas, 23 F. Cas. 201 (D.
Pa. 1853).
173
MARK TWAIN, THE ADVENTURES OF TOM SAWYER ii (American Publishing Co. 1875).
174
Keen v. Wheatley, 14 F. Cas. 180 (D. Pa. 1861) (No. 7,644); Daly v. Palmer, 6 F. Cas. 1132 (S.D.N.Y. 1868)
(No. 3,552); Boucicault v. Fox, 3 F. Cas. 977 (S.D.N.Y. 1862) (No. 1,691).
At the time of the Framing, the view of such dramas is perhaps best captured in a letter from Samuel
Adams, writing that the Continental Congress had passed a resolution recommending that states discourage the
stage:
[The resolution was] earnestly recommending to the several States to take the most effectual Measures…to
prevent Stage playing and such kinds of Diversions, as are productive of Vice, Idleness, Dissipation, and a
general Depravity of Principles and Manners. … [S]ome of the Officers of ours have condescended to act
on the Stage; while others, and on of superior Rank, were pleased to countenance them with their Presence.
53
purposes.175 And by the early 1900s, with the advent of film technology, it is clear that the
public was comfortable seeking copyright protection for works whose purpose was to entertain
as opposed to serving a branch of study or providing practical instruction. Steamboat Willie and
Betty Boop lie safely within the domain of copyrightable works.176
2. Congress
During this period, Congress did not specifically address permissible specific subject
matter of copyright. So arguably it did not address the meaning of science. Yet indirectly, it
appears to have treated that meaning. Congress in 1856 introduced a right of performance for
dramatic works.177 To the extent that the purpose of the performance right is to promote
entertainment, that right would not appear to promote science.178 Emphasis on performance
thereby suggests an emphasis on entertainment rather than education. Furthermore, the right of
performance emphasizes the application of knowledge—the product of instruction, or the art—
rather than the theoretical knowledge that underlies it, the science.179 As an application of
This with some other Appearances as disagreeable to the sober Inhabitants of this City as to Congress, gave
Occasion for the Resolution.
Letter from Samuel Adams to Samuel Phillips Savage in 3 EDMUND C. BURNETT, LETTERS OF MEMBERS OF THE
CONTINENTAL CONGRESS 451-52 (1926).
175
Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) (photograph of Oscar Wilde posing); Falk v. T.P.
Howell & Co., 37 F. 202 (S.D.N.Y. 1888).
176
E.g., King Features Syndicate v. Fleischer, 299 F. 533, 535 (2d Cir. 1924) (copyright in cartoon, ―Barney Google
and Spark Plug‖); Fleischer Studios, Inc. v. Ralph A. Freundlich, Inc., 5 F. Supp. 808 (S.D.N.Y. 1934) (copyright in
Betty Boop cartoon character). See also Walt Disney Co. v. Powell, 897 F.2d 565, 570 n.10 (D.C. Cir. 1990)
(recognizing copyright in Steamboat Willie, a 1928 cartoon short film).
177
See Act of August 18, 1856, 34th Cong., 1st Sess., 11 Stat. 138 (granting copyright holders rights ―to act,
perform, or represent the [work]‖, but excluding public performance of musical compositions); Higgins v. Keuffel,
140 U.S. 428, 431 (1891); Baker v. Selden, 101 U.S. 99, 105 (1879). In 1897, Congress extended the right of public
performance to musical compositions. See Act of January
6, 1897, 54th Cong., 2d Sess., 29 Stat. 481.
178
See Solum, supra note 1, at 55 (noting tension between right of public performance and original meaning of
science in Copyright Clause).
179
See discussion supra Part I.B.3.b(1) (contrasting meaning of science and art based on usage at time of Framing);
WEBSTER‘S 1828 DICTIONARY, supra note 109 (unpaginated) (defining science) (―In general, an art is that which
depends on practice or performance, and science that which depends on abstract or speculative principles. The
54
instruction, performances would further an art rather than a science.180 From this standpoint,
Congress‘s 1856 Amendment that introduced the performance right seems inconsistent with the
concept of promoting science as a branch of study.
In 1870, Congress included protection for paintings, drawings, chromolithographs,
statues, statuaries, and models or designs. This expanded group of works might suggest that
Congress viewed copyright as encouraging expression for its own sake, rather than expression
for the promotion of science. Arguably, however, Congress attempted to tether these categories
of works to science by including the qualification that such works must be ―intended to be
perfected and completed as a work of the fine art.‖181 Works intended to be fine art arguably
serve a branch of study. But in the subsequent 1909 Copyright Act, Congress included no such
qualifying language. By the beginning of the 1900s, then, Congress appears to have implicitly
endorsed a view of encouraging all forms of expression regardless of its tie to a branch of study.
3. Courts
Consistent with the treatment of science by the public and Congress during this period,
courts also tacitly recognized an expanded meaning of science. At the same time, they were
careful to preserve a discriminatory meaning. Specifically, they construed science so as to
preclude protection for a narrow group of purposes that would obviously not serve a branch of
study. The two subsections below describe both this tacit judicial expansion of meaning as well
as the express judicial preservation of meaning.
theory of music is a science; the practice of it an art.‖) (emphases in original). Arguably, however, this right could
support the meaning of science if the performance employed effective pedagogical means to impart a subject of a
branch of knowledge.
180
The same could be said of the right of public display, introduced in the 1976 Copyright Act. See 17 U.S.C. § 106
(5) (2006).
181
Act of July 8, 1870, 41st Cong., 2s Sess., 20 Stat. 359. As discussed below, the Supreme Court in Bleistein v.
Donaldson later read this apparent restriction as not restricting any sort of works. Yet the Court‘s broad reading
later does not change the fact that Congress appears to have intended to restrain the reach of copyright to works
intended to be a fine art.
55
a. Judicial Expansion of Meaning
(1) Folsom v. Marsh
In 1841, Justice Joseph Story of the Supreme Court addressed whether a work‘s subject
matter could disqualify it from receiving federal copyright protection. This occurred in Folsom
v. Marsh, where Justice Story sat by designation at the federal district court of Massachusetts. In
Folsom the plaintiff claimed a copyright in letters written by George Washington. The defendant
argued, among other things, that the letters could not be copyrighted because they were not
literary compositions—they were mere correspondence.
Although the Folsom opinion never explicitly mentions science, the defendant‘s
argument could be restated as the letters did not serve a recognized branch of study—literary
composition—and so they should not be copyrighted. The defendant‘s argument was essentially
that the letters would not promote science. And this argument Justice Story rejected. He
reasoned that many letters written in various contexts—business, personal anecdote, and family
gossip—embrace critical remarks on valuable subjects, including moral, religious, political, and
literary subjects. In short, Justice Story reasoned that the apparent content and context of letters
could mask their value.
Justice Story, then, did not restrict copyright to works whose ostensible purpose was to
serve a recognized branch of study. This would seem to depart from the original meaning of
science. Yet to an extent, Justice Story also seemed to preserve that meaning. Implicit in his
reasoning is the assumption that the purpose of copyright is to promote subjects that are valuable.
The encouragement of comments on morality, religion, politics, and literature Justice Story cited
as a reason to extend copyright coverage. Subjects like those he cited constituted branches of
study or sciences, and so implicit in his reasoning is that copyright exists to promote science.
56
Further preservation of the meaning of science by Justice Story is evident in another
writing of his, Commentaries on Equity Jurisprudence, where he wrote that copyright cannot
exist ―in any work of a clearly irreligious, immoral, libelous, or obscene description.‖182 So
although Justice Story was uncomfortable judging which content would promote branches of
study, he apparently was comfortable judging which content would not promote branches of
study. According to Justice Story, it would seem that while judges can‘t always discern what
will promote science, they can discern what obviously will not.
(2) Bleistein v. Donaldson
In 1903, the Supreme Court in Bleistein v. Donaldson adopted a view similar to that
articulated by Justice Story regarding the subject matter of copyright. There the issue was
whether posters that advertised a circus were copyrightable.183 In a majority opinion by Justice
Oliver Wendell Holmes, the Court held that they were copyrightable.184
Holmes‘s central
message was that judges should not be arbiters of content value outside of the most obvious
situations.185 In the words of Holmes:
It would be a dangerous undertaking for persons trained only to the law to
constitute themselves final judges of the worth of pictorial illustrations, outside of
the narrowest and most obvious limits.186
For Holmes, judges should be able to deny copyright protection in only the narrowest and most
obvious categories of content.
182
JOSEPH STORY, COMMENTARIES ON EQUITY JURISPRUDENCE § 936 at 212 (1884) (―In the first place, no copyright
can exist, consistently with principles of public policy, in any work of a clearly irreligious, immoral, libelous, or
obscene description.‖).
183
188 U.S. 239 (1903).
184
Id. at 252.
185
See id. at 250-52.
186
Id. at 251.
57
This message Holmes preached throughout the opinion, including his inquiry into
whether a work‘s purpose was sufficiently valuable to merit protection—an inquiry that courts
had traditionally performed as a requirement of science.187 So in analyzing whether the circus
posters served a valuable purpose, Holmes noted merely that there was evidence that they were
used for a purpose that was less pretentious than advertising.188 That evidence was apparently
sufficient to show that the purpose of the posters was not one of the narrow and obvious
purposes for which copyright protection could not exist. Tellingly, implicit in his analysis is the
premise that advertising alone may be one of the obvious purposes that does not promote
science. To the point, though, is the conclusion that Holmes viewed the purposive inquiry as
relevant only in the most narrow and obvious of purposes that would not satisfy science. An
equivalent statement of his position, then, is that while judges can‘t always discern that which
promotes science, they can discern that which will obviously not.
After Bleistein (and after Folsom), courts remained silent on the purposive inquiry of
science, other than where the purpose obviously did not promote science. Courts turned a blind
eye to the issue in cases dealing with romantic novels, comedic plays, aesthetic photographs, and
cartoon characters—although the issue was not expressly raised.
So for works that were
questionable as to whether their purpose served science, courts did not raise the issue. Their
silence seemed like a tacit adherence to the view articulated by Justice Holmes in Bleistein and
Justice Story in Folsom.
b. Judicial Preservation of Meaning
At the same time that courts were expanding the meaning of science, they were careful to
187
See Higgins v. Keuffel, 140 U.S. 428, 431 (1891) (examining purpose of label to determine whether it was
consistent with promoting science).
188
See 188 U.S. at 251.
58
preserve the meaning as well. As discussed in the immediate subsection above, Justice Story
appears to have implicitly recognized that copyright aims to promote expression dealing with
certain subjects of study, and indeed he recognized that works that clearly failed to promote such
subjects of study were ineligible for copyright protection.
Likewise, Justice Holmes
acknowledged that works must have some value in their purpose to be copyrightable and further
recognized that judges could determine the narrow and obvious cases that lacked any valuable
purpose.
The Supreme Court in other cases of the same period was more vocal in its support for a
meaning of science that determined copyright eligibility of works. In two cases, Baker v. Selden
in 1879189 and Higgins v. Keuffel in 1891,190 the Court portrayed science consistent with its
meaning at the time of the Framing as a basis for denying protection to works.191
(1) Baker v. Selden
In 1879, the Supreme Court in Baker v. Selden expressly adopted, through direct
quotation, Justice Thompson‘s test in Clayton v. Stone for whether expression promotes
science.192 In denying copyright protection for an accounting form, the Baker Court turned to
Justice Thompson‘s test for science articulated fifty years earlier. The Baker Court quoted his
view, where he had portrayed science as requiring works to have a subject matter that was
―fixed, permanent, and durable.‖193
189
See 101 U.S. 99, 105-06 (1879).
190
See 140 U.S. 428, 431 (1891).
191
See discussion infra Part II.A.
192
101 U.S. 99, 105-06 (1879).
193
The Court quoted the following language from Justice Thompson:
[I]t would certainly be a pretty extraordinary view of the sciences to consider a daily or weekly
publication of the state of the market as falling within any class of them. They are of a more fixed,
permanent, and durable character. The term science cannot, with any propriety, be applied to a
59
This language that the Baker Court adopted seems inconsistent with the approach
outlined by Justices Story and Holmes in Folsom and Bleistein.
Their view of allowing
copyright for all works except a narrow and obvious group seems much more inclusive. This
inconsistency, however, is explicable by the fact that Baker‘s more stringent language is only
dicta. The quotation from Justice Thompson served only as comparative support for the Court‘s
own decision to deny protection on the grounds that the accounting form represented an
uncopyrightable idea. The strong view of science that Baker purported to endorse does not
appear to have affected how courts were treating science at that time.
(2) Higgins v. Keuffel
In 1891, the Supreme Court decided Higgins v. Keuffel, where it denied protection for
labels of ink bottles. Among other reasons for denying protection, the Court denied protection
on the grounds that the labels were not connected with science or the useful arts.194 The Court
explained:
The use of such labels upon those articles has no connection with the progress of
science and the useful arts. . . . To be entitled to a copyright the article must have
by itself some value as a composition, at least to the extent of serving some
purpose other than as a mere advertisement or designation of the subject to which
it is attached.195
Science, according to the Court‘s explanation, would require that the labels have value as a
composition, or in other words, serve some purpose other than advertisement or designation.196
work of so fluctuating and fugitive a form as that of a newspaper or pricecurrent, the subjectmatter of which is daily changing, and is of mere temporary use.
194
The Court also denied protection on the grounds that the labels did not satisfy the writings requirement of the
Copyright Clause. The Court relied on its established rule from previous case law that a work must be ―original,‖ or
in other words, result from ―the creative powers of the mind,‖ to qualify as a writing under the Copyright Clause.194
Because the labels merely described the articles to which they were attached, they failed the test for originality and
could not be considered a writing.
195
Id.
196
Id.
60
To the extent that science requires a purposive inquiry, the Court thus maintained the meaning of
science.
Noteworthy is that the Higgins Court did not explain which purposes would have been
sufficient to satisfy science.
Instead, the Court noted only purposes that would not be
sufficient—advertisement and designation.197 Stated differently, the Court identified specific
purposes that would constitute narrow and obvious purposes lying outside the meaning of
science. Its analysis is therefore consistent with the conclusion of Bleistein with respect to the
narrow and obvious purposes that do not promote science.198
(3) Lower Court Decisions
Other courts denied protection to works whose purpose was inconsistent with the
meaning of science. Many of those decisions, however, did not cite science or the Copyright
Clause as the basis for denying protection, denying protection on the grounds that the subject
matter precluded protection as a matter of public policy.199 Nevertheless, these decisions are
197
Id.
198
The consistency of Higgins and Bleistein is further apparent by courts‘ treatment of the cases during this time. In
1924, the Eighth Circuit considered whether labels sold on fruit nectar bottles were copyrightable in Fargo
Mercantile Co. v. Brechet & Richter Co. 295 F. 823, 824 (8th Cir. 1924). The court recognized both that Higgins
required it to examine the value of the labels‘ purpose, and that Bleistein stood for the proposition that just because a
work serves to advertise goods does not absolutely preclude copyright protection (for it could still have a valuable
purpose). Id. at 828. After recognizing that Higgins and Bleistein were both good law, the Eighth Circuit proceeded
to identify a valuable purpose in the labels that was distinct from its advertising function: the labels included recipes
that served to advance culinary arts. Id. Notably, the Eighth Circuit held that fanciful emblems on the labels were
not copyrightable on the grounds that they served only the purpose of advertising. See also Forstmann Woolen Co.
v. J.W. Mays, Inc., 89 F. Supp. 964 (E.D.N.Y. 1950) (relying on Higgins to deny copyright protection for
designation labels); Bobrecker v. Denebeim, 28 F. Supp. 383, 384-85 (W.D. Mo. 1939) (denying copyright
protection to labels based on Higgins requirement that the labels must contain a valuable purpose, while recognizing
its consistency with Bleistein). Cf. Ansehl v. Puritan Pharm. Co., 61 F.2d 131,133-36 (8th Cir. 1932) (analyzing
case law prior to and after Bleistein to arrive at conclusion that advertising is proper subject matter of copyright
under the constitutional requirement for originality). But see Griesedieck W. Brewery Co. v. Peoples Brewing Co.,
56 F. Supp. 600, 605 (D. Minn. 1944) (interpreting Bleistein as setting for a ―more liberal rule‖ than that articulated
in Higgins, yet denying protection for label seemingly based on Higgins).
199
See, e.g., Stone & McCarrick v. Dugan Piano Co., 220 F. 837, 842-43 (5th Cir. 1915) (denying protection for
series of advertisements on basis that even if advertisements were copyrightable, they could not be copyrighted if
the purpose of their content was to mislead and deceive); Hoffman v. Le Traunik, 209 F. 375, 379 (N.D.N.Y 1913)
61
consistent with the treatment of courts denying copyright protection where a work‘s purpose
cannot reasonably be construed to lead to the promotion of a branch of study.
Some courts did refer to the constitutional obligation to deny copyright protection based
on a work‘s purpose. For instance, several courts denied protection where the purpose of the
work was to express obscenity, expressly holding that such a purpose fails to promote science.200
One notable opinion examined whether the purpose of commercial advertising promoted science.
(―To be entitled to be copyrighted, the composition must be original, meritorious, and free from illegality or
immorality.‖); Broder v. Zeno Mauvais Music Co., 88 F. 74, 79 (N.D. Cal. 1898) (―[T]he word ‗hottest,‗ as used in
the chorus of song ‗Dora Dean,‘ has an indelicate and vulgar meaning, and that for that reason the song cannot be
protected by copyright.‖); Lamb v. Grand Rapids School Furniture Co., 39 F. 474, 475 (W.D. Mich. 1889) (denying
protection for catalogue illustrating merchandise on grounds that federal legislation does not recognize copyright in
expression serving only trade purposes); Schumacher v. Wogram, 35 F. 210, 211 (S.D.N.Y. 1888) (denying
protection for advertising label containing pictorial illustration); Scoville v. Toland, 21 F. Cas. 863, 864 (D. Ohio
1848) (denying protection for labels to medicine bottles on grounds that labels do not fit within the meaning of
―books‖ in the statute); Rosenbach v. Dreyfuss, 2 Fed. 217, 222 (S.D.N.Y. 1880) (denying protection for embroidery
and printing lines on basis that the statute does not cover such content); Ehret v. Pierce, 10 F. 553, 553-54 (E.D.N.Y.
1880) (denying protection to advertising card on basis that it fell outside subject matter designated by 1831
copyright statute). Cf. Schumacher v. Schwencke, 25 F. 466, 467 (S.D.N.Y. 1885) (recognizing that painting could
be subject of copyright despite it being used for advertising purposes, on assumption that painting not intended
exclusively for advertising use).
200
Several courts recognized that obscenity was an obvious purpose that failed to promote science. In 1904, the
Southern District of New York in Barnes v. Miner rejected copyright protection for a film of a woman disrobing, the
purpose of which was ―lascivious and immoral.‖ 122 F. 480, 489 (1903). The exhibition, the court held, was not
―of a nature to ‗promote the progress of science.‘‖ Id. at 489. In 1947, a federal district court denied protection for
an obscene work, reasoning: ―Copyright provisions … were never intended to protect illegality, or, immorality.
They are for the purpose of promoting the ‗progress of science and useful arts.‘‖ Bullard v. Esper, 72 F. Supp. 548,
548 (N.D. Tex. 1947). Finally, the comments of a 1963 New York court are instructive on judicial understanding of
the meaning of science (in an action brought under common law copyright):
Where a performance contains nothing of a literary, dramatic or musical character which is calculated to
elevate, cultivate, inform or improve the moral or intellectual natures of the audience, it does not tend to
promote the progress of science or the useful arts. Thus, not everything put on the stage can be subject to
copyright. While plaintiff‘s performance was no doubt amusing and entertaining to many, it [is] not…a
production tending to promote the progress of science and useful arts. 200
Dane v. M&H Co., 136 U.S.P.Q. (BNA) 426, 429 (N.Y. Sup. Ct. 1963) (denying copyright protection for strip tease
dance).
For those courts that did recognize protection where the value of the purpose of works was questionable,
they still engaged in an analysis of whether the content merited protection. See Paramore v. Mack Sennett, 9 F. 2d
66, 68 (S.D. Calif. 1925) (recognizing valid purpose of seemingly salacious expression in order to uphold
copyright); Simonton v. Gordon, 12 F.2d 116, 124 (S.D.N.Y. 1924) (upholding copyright protection on grounds that
an ―unnecessarily coarse and highly sensual‖ work purports to display actual conditions in a foreign country, and
was dealt with in a way not calculated to arouse lust); Khan v. Leo Feist, 10 F. Supp. 450, 458 (S.D.N.Y. 1947) (―It
cannot be seen that there was a purpose to corrupt the morals of hearers, or to stimulate thoughts or impulses which
would otherwise be dormant.‖).
62
In 1897, the Seventh Circuit decided Mott Iron Works v. Clow, denying protection for a price
catalogue.201 The court stated:
[The Copyright and Patent Clause] is not designed as a protection to traders in the
particular manner in which they might shout their wares. It sought to stimulate
original investigation, whether in literature, science, or art, for the betterment of
the people, that they might be instructed and improved with respect to those
subjects.202
The Copyright Clause was not intended to protect expression as commerce, but rather to
stimulate investigation into subjects that would better society—so taught the Seventh Circuit.203
C. The Modern Interpretation
During the latter part of the twentieth century, the meaning of science underwent a
fundamental change. From a system of knowledge comprising distinct branches of study to a
catalogue of creative expression, science had come to encompass everything. Anything created
would now qualify as promoting science. By including everything, science discriminated against
nothing. It became meaningless. This Section maps the history of that change and explains the
problems with this modern judicial construction.
1. Congress
Although nothing in the 1976 Copyright Act expressly defines science as including every
sort of subject matter, it provides subtle indicators of this conclusion. In addition to the broad
category of works and rights that suggest a focus on creativity or entertainment rather than
science, the 1976 Act defines criteria for copyright without mentioning science or purpose. The
criteria include the constitutional requirements of originality and tangible medium under the
Clause‘s ―writings‖ term. The criteria fail to mention anything related to science.
201
82 F. 316, 318-19 (7th Cir. 1897).
202
82 F. at 318-19.
203
Id.
63
Legislative history that led to the 1976 Copyright Act also reveals the modern
interpretation of science. In 1952, a Senate and House report explained the meaning of science
in the Copyright Clause as follows: ―[T]he word ‗science‘ in this connection [has] the meaning
of knowledge in general, which is one of its meanings today.‖204 No support was given for this
statement.205
In 1965, the Register of Copyrights—an agency of Congress—reported to
Congress that the purpose of copyright law was to ―disseminate creative works‖—with no
reference to science or fields of study.206
2. Courts
The change in the meaning of science has been most apparent and pronounced in courts.
As discussed below, in the past few decades, the Supreme Court has engaged in rhetoric that has
displaced any discriminatory force of science, stripping it of meaning. However, none of this
rhetoric has been the basis for a holding that has granted copyright protection. So for all its
rhetoric that strips science of meaning, the Court has preached dicta. Other courts, however,
have relied on a meaningless interpretation of science to grant protection. In those jurisdictions,
courts have stripped science of meaning.
a. Judicial Rhetoric
The 1973 case of Williams & Wilkins Co. v. United States represents the first instance
where a lower court proclaimed that science meant merely ―general knowledge‖ at the time of
204
See H.R. Rep. No.1923, 82d Cong., 2d Sess. 4 (1952); S. Rep. No. 1979, 82d Cong., 2d Sess. 3 (1952).
205
A few years later in 1960, one commentator re-iterated this conclusion that science meant knowledge, but his
analysis was entirely lacking, citing only to Johnson‘s Dictionary and providing his first definition. See Rich, supra
note 36, at 396-97.
206
SUPPLEMENTARY REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL REVISION OF THE U.S. COPYRIGHT
LAW: 1965 REVISION BILL, 89th Cong., 1st Sess. 13 (House Comm. Print 1965). Cf. 41 Op. Att'y Gen. 395, 402
(1958) (arguing that ―for policy reasons, it may not be thought appropriate for the Register [of Copyrights] to
undertake to be a conservator of public morals‖).
64
the Framing.207 In support of this claim, the court relied only on the 1952 Legislative History
statement quoted above and a law review article whose analysis for that claim was lacking
(relying only on the first definition for science in Dr. Johnson‘s Dictionary).208 Although this
definition was not a basis for granting copyright protection, it represented the beginning of a turn
in judicial treatment of science—general knowledge. Indeed, the Williams decision became cited
as an authority on the meaning of science as general knowledge.209
Subsequent to Williams, the Supreme Court adopted language that suggested science
meant general knowledge. This began when the Court framed the purpose of copyright as
stimulating creativity or originality (which turns on creativity).210
In doing so, the Court
implicitly equated the promotion of science with the stimulation of creativity—portraying the
former as representing the ostensible purpose of copyright and the latter as representing the
practical purpose of copyright.
On the basis that creativity adds to the general store of
knowledge, the Court appears to have viewed the promotion of science as the promotion of
general knowledge. Hence, creativity as the end of copyright necessitated interpreting science as
general knowledge.
Of course originality (and thereby creativity) is a constitutional requirement for copyright
protection in the Copyright Clause. Creativity evidences originality, and originality is necessary
207
Williams & Wilkins Co. v. U. S., 487 F.2d 1345, 1382 (Ct. Cl. 1973), rev’d on other grounds, 487 F.2d 1345 (Cl.
Court. 1973), aff’d by equally divided Court, 420 U.S. 376 (1975) (―The word ‗Science‘ [in the Copyright Clause] is
used in the sense of general knowledge rather than the modern sense of physical or biological science.‖).
208
Id. (relying on House and Senate Reports cited supra note 204 and on Rich, supra note 15, at 394-97). See also
discussion supra note 15.
209
See, e.g., 1 PATRY, supra note 20, at 123 n.12.
210
See Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 346 (1991) (interpreting
originality requirement of the Copyright Clause to mean that a work ―possesses at least some minimal degree of
creativity‖). See, e.g., Feist, 499 U.S. at 347 (describing originality as the ―touchstone‖ and ―very premise of‖
copyright law); Harper & Row Publishers, Inc. v. Nations Enterprises Inc., 471 U.S. 539, 545-46, 558 (1985)
(explaining purpose of copyright as ―increasing the harvest of knowledge‖ and declaring that ―original works‖
provide the ―seed and substance of this harvest‖); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156
(1974) (―[T]he ultimate aim [of copyright] is, by this incentive, to stimulate artistic creativity….‖).
65
for a work to satisfy the meanings of ―writings‖ and ―authors‖ in the Clause. Originality as a
necessary element of the writings and authors terms has been well established in Supreme Court
case law, going back to 1879 in the Trade-Mark Cases211 and 1884 in Burrow-Giles
Lithographic Co. v. Sarony.212 But until the latter portion of the twentieth century, neither
originality nor creativity had been an element of science. Until that time, originality had been
associated with writings and authors—not science.
The subtle shift in viewing the promotion of science as the promotion of creativity or
originality, and thereby from science to general knowledge, began in the mid 1970s and 1980s.
In the 1975 case of Twentieth Century Music Corp. v. Aiken, the Court mentioned in dicta that
―the ultimate aim‖ of copyright ―is to stimulate artistic creativity.‖213 In 1984, in Sony v.
Universal City Studios, the Court declared that the ―important public purpose‖ of copyright is ―to
motivate the creative activity of authors.‖214 A year later, in Harper & Row Publishers, Inc. v.
Nations Enterprises Inc., the Court explained the purpose of copyright as ―increasing the harvest
of knowledge,‖ and that fostering ―original works‖ provided the ―seed and substance of this
harvest.‖ Further in Harper the Court described the purpose of copyright as supplying an
211
See 100 U.S. 82, 94 (1879). In the words of the Trade-Mark Cases Court:
If we should endeavor to classify [the work] under the head of writings of authors [under the
Copyright Clause] . . . originality is required. And while the word writings may be liberally
construed, . . . it is only such as are original, and are founded in the creative powers of the mind.
The writings which are to be protected are the fruits of intellectual labor. . . . [The trademark]
requires no fancy or imagination, no genius, no laborious thought. It is simply founded on priority
of appropriation.
212
See 111 U.S. 53, 57-58 (1884).
213
422 U.S. 151 (1975).
214
464 U.S. 417, 429 (1984).
66
incentive ―to create and disseminate ideas.‖215 Notably there, the Court failed to qualify the sort
of ideas copyright is intended to engender—i.e., ideas promoting the progress of science.
In 1991, the Court‘s language in Feist Publications, Inc. v. Rural Telephone Service Co.,
Inc. further erased the original meaning of science.216 Writing for the Court, Justice O‘Connor
described the purpose of copyright not as promoting science, but rather as promoting originality,
which is determined by creativity.217 Justice O‘Connor stated:
The originality requirement articulated in The Trade-Mark Cases and Burrow-Giles
remains the touchstone of copyright protection today. It is the very premise of copyright
law.218
And later:
The primary objective of copyright is …―[t]o promote the Progress of Science and useful
Arts.‖ To this end, copyright assures authors the right to their original expression.219
Thus, in no uncertain terms the Court articulated a view of copyright that defines originality
(which turns on creativity) as the primary objective of copyright. Originality is the touchstone,
and rights to original expression enable copyright to accomplish its objective of promoting the
progress of science, so taught the Feist Court.
In Campbell v. Acuff-Rose Music, Inc., the Court in 1994 continued its focus on creativity
as the purpose of copyright.220 Campbell took up the question of whether a transformative use
suggested fairness.221 By transformative, the Court meant that the use ―adds something new‖ to
215
471 U.S. 539, 545-46, 558 (1985). Given the fact that the test for whether a work is original turns on creativity,
the Harper quotation above could be read as ―creativity provides the substance of the harvest of knowledge that is
the purpose of copyright.‖
216
499 U.S. 340, 347 (1991).
217
Id.
218
Id.
219
Id. at 349 (emphasis added).
220
510 U.S. 569, 579 (1994).
221
Id. at 578-79.
67
the underlying expression, or in other words, that the use is creative. 222
In describing the
importance of transformative uses, the Court declared: ―[T]he goal of copyright, to promote
science and the arts, is generally furthered by the creation of transformative works.‖223 Hence,
the Court here implied that creation of transformative works—works that build upon others—
promotes science. It again equated promotion of science with promotion of creativity.
In 2003, the Court in Eldred v. Ashcroft explained the public benefit of copyright as ―the
proliferation of knowledge,‖ which would ―ensure[] the progress of science.‖224 And in dissent,
Justice Breyer explained his belief, consistent with the majority, that by ―‗Science‘…the Framers
meant learning or knowledge.‖225
Thus, since Aiken in 1975 to its most recent decisions, the Court has suggested a meaning
of science that is contrary to the meaning in the Copyright Clause.226 General knowledge, which
arises from mere creativity, is the meaning today—quite distinct from the system of knowledge
comprising branches of study. The modern definition does not turn on the value of a work‘s
purpose, enabling expression that fails to promote science.
222
Id. at 579.
223
Id.
224
537 U.S. 186, 212 n.18 (2003). (―[T]he incentive to profit from the exploitation of copyrights will redound to the
public benefit by resulting in the proliferation of knowledge. The profit motive is the engine that ensures the
progress of science.‖).
225
Id. at 243 (Breyer, J., dissenting) (citing to WALTERSCHEID, supra note 1 at 125–126.
226
Lower courts have followed the Supreme Court‘s lead in describing the purpose of copyright in terms of
knowledge, misinterpreting science to mean general knowledge. See, e.g., R.W. Beck, Inc. v. E3 Consulting, LLC,
577 F.3d 1133 (10th Cir. 2009) (describing ―progress of science‖ as ―knowledge creation and dissemination‖); In re
Comiskey, 554 F.3d 967, 977 n.9 (Fed. Cir. 2009) (―The Supreme Court has concluded that the references to
‗Science‘ (i.e., knowledge generally) and ‗Writings‘ creates the right to copyright protection….‖); National Cable
Television Ass‘n v. Copyright Royalty Tribunal, 689 F.2d 1077, 1079 (D.C. Cir. 1982) (relying on Aiken for the
proposition that ―copyright is intended to encourage the development and dissemination of knowledge by providing
incentives to creators‖); Infodek, Inc. v. Meredith-Webb Printing Co., Inc., 830 F. Supp. 614, 622 n.8 (N.D. Ga.
1993) (―[T]he use of the term ‗science‘ [in the Copyright Clause] relates to copyrights and is generally given its
eighteenth century meaning of knowledge or learning.‖); Golan v. Gonzales, No. Civ.01-B-1854(BNB), 2005 WL
914754, at *12 (D. Col. April 20, 2005) (describing the objective of the Copyright Clause as the ―dissemination of
knowledge‖).
68
b. Judicial Holdings
Beginning in the 1970s, lower courts decided to uphold copyright protection regardless of
a work‘s content.227 Some of these courts did not always consider the meaning of science,
framing the issue as a policy, rather than constitutional, question.228 Yet in at least one case, a
court has addressed the constitutional issue of whether the Copyright Clause requires it to engage
in a content-based evaluation in determining copyrightability. That court was the Fifth Circuit in
the 1979 case, Mitchell Brothers v. Cinema Adult Theater.229
In Mitchell, the Fifth Circuit examined whether obscene works could qualify for
copyright protection.230
Plaintiffs asserted copyright infringement for use of their motion
227
See, e.g., Belcher v. Tarbox, 486 F.2d 1087, 1088 (9th Cir. 1973) (rejecting argument that false and fraudulent
material could not receive copyright protection on grounds that it would create a difficult burden for the court to
determine truth); Mitchell Brothers v. Cinema Adult Theater, 604 F.2d 852 (5th Cir. 1979) (concluding that obscene
content does not bar it from being copyrightable); Jartech, Inc. v. Clancy, 666 F.2d 403, 404-05 (9th Cir. 1982)
(same).
One court noted a commentator that opined a much broader scope of subject matter protection than that
contemplated by science in the Copyright Clause. See Surgical Supply Serv., Inc. v. Adler, 206 F. Supp. 564, 568
(E.D. Penn. 1962) (denying protection for price list on grounds that it lacked artistic or literary merit, but noting the
claim of commentator Horace Ball). That commentator, Horace Ball, stated in his 1944 copyright treatise:
Intellectual productions which are designed and created to refresh the physical, mental or moral
powers by amusing, entertaining or instructing, or by appealing directly to the aesthetic taste, as
well as those subjects which directly serve to inculcate mental discipline or add to the store of
knowledge, are all within the range of ―science and useful arts‖ as that phrase has been interpreted
by the courts.
HORACE BALL, LAW OF COPYRIGHT AND LITERARY PROPERTY 67 (1944). Ball, however, failed to cite any authority
for his claim.
228
In Belcher, the Ninth Circuit recognized copyright protection for false and fraudulent material. 486 F.2d at 1088.
The plaintiff had published a horse-racing handicapping system, and the defendant argued that the plaintiff had
knowingly made false statements regarding the system. Id. On this basis the defendant argued that the publication
should not receive copyright protection. Id. The court rejected this argument on public policy grounds, asserting
that it would be an administrative impossibility to require a court to judge whether expression were actually true to
receive copyright protection. Id. The court did not address any constitutional issue, ignoring the Higgins
requirement that the court examine the value of the purpose of the expression. It would seem that if the court had
applied the Higgins test, it would not have been copyrightable, for the work‘s purpose was found to be deceptive by
the trial court.
229
604 F.2d 852 (5th Cir. 1979).
230
Id. at 854-65.
69
picture, which the trial court had found to be obscene, and therefore unprotectable. 231 In an
opinion by Judge Godbold, the Fifth Circuit reversed, holding that obscenity should not bar
protection.232 As part of its analysis, the court considered the constitutional issue of whether
Congress had power to grant copyrights for the obscenity.233 Defining the purpose of the
Copyright Clause to be the promotion of creativity, the court concluded that obscenity was
copyrightable under the Clause.234 The court then reasoned that the Copyright Clause does not
require that each particular copyrighted expression promote the progress of science, but rather
that Congress act reasonably in an effort to promote the purpose of the Clause.235
The court‘s reasoning is problematic on several grounds.
As an initial matter, its
argument that each individual work need not comply with the purpose of the Copyright Clause
contravenes over a century of copyright jurisprudence.236 All courts prior to Mitchell had
required individual works to comport with the terms in the Copyright Clause—including science.
231
Id. at 854.
232
Id.
233
Id. at 858-60. The court initially interpreted the Copyright Act as purporting to protect all works, including
obscene works, without any content restriction—a conclusion it reached based on the Act‘s silence as to content
restriction. Id. at 856.
234
The Court made explicit its belief that creativity is the goal of the Copyright Clause:
The purpose underlying the constitutional grant of power to Congress to protect writings is the
promotion of original writings, an invitation to creativity. This is an expansive purpose with no
stated limitations of taste or governmental acceptability. Such restraints, if imposed, would be
antithetical to promotion of creativity. The pursuit of creativity requires freedom to explore into
the gray areas, to the cutting edge, and even beyond. . . . Congress could reasonably conclude that
the best way to promote creativity is not to impose any governmental restrictions on the subject
matter of copyrightable works.
Id. at 856, 860.
235
Id. at 859-60. Rather telling in Mitchell is the fact that the court believed it necessary to argue that each
individual work did not need to promote science. This argument suggests that the court believed obscenity did not
fulfill that purpose. Yet by defining science to mean creativity, obscenity would have fulfilled the Clause‘s purpose,
for the inquiry into creativity is entirely blind to content. So although the court expressly defined science as
creativity, its reasoning implied that science was more than that.
236
See, e.g., Higgins v. Keuffel, 140 U.S. 428, 431 (1891); Clayton v. Stone, 5 F. Cas. 999, 1003 (S.D.N.Y. 1829)
(Thompson, J.).
70
Further reasons oppose the argument that individual works need not be subject to individual an
analysis of the Copyright Clause, but I do not address them here as that argument does not speak
to the meaning of science.237
With regard to the meaning of science, the Mitchell court employed the erroneous
meaning discussed in the subsection above, i.e., creativity.238 In the words of the court: ―The
purpose underlying the constitutional grant of power to Congress to protect writings is the
promotion of original writings, an invitation to creativity.‖239 As discussed above, originality,
and its attendant characteristic of creativity, represents a requirement imposed by the writings
and authors terms of the Clause—not the science term.240 The court‘s premise was false, which
led to its erroneous conclusion that restraints on even obscene expression would ―be antithetical
to promotion of creativity,‖ and therefore, would contravene the purpose of the Clause—
creativity.241 Even obscenity is creative. Thus, the Mitchell court treated science as creativity
and, rather unsurprisingly, ended up with its conclusion that obscenity was copyrightable.
Since Mitchell, courts by and large have not addressed the question of whether the
Copyright Clause prevents protection based on a work‘s subject matter. The year after Mitchell,
commentator David Nimmer gave Mitchell his full endorsement in his copyright treatise, so the
237
The argument ultimately deals with the extent to which the phrase ―promote the progress of science‖ constrains
Congress. Mitchell‘s reasoning would imply that individual works also would not need to comply with the Clause‘s
originality requirement. Likewise, a congressional grant of an unlimited copyright term to one particular author
(say, Disney, for instance) would not violate the Clause. On this issue, William Patry observes that ―Bleistein…did
not reach the issue of whether each individual work must itself promote the progress of science in order to be
protectable.‖ 1 PATRY, supra note 20, at 126.
238
See Mitchell, 604 F.2d at 856, 860.
239
Id. at 856.
240
See discussion supra Part II.C.2.a.
241
604 F.2d at 856.
71
issue seemed closed.242 The closest a court has come to addressing whether the Copyright
Clause imposes a subject matter restriction under its science term occurred three years after
Mitchell when the Ninth Circuit considered the copyrightability of obscenity in Jartech, Inc. v.
Clancy.243 There a city council copied images of an obscene movie in the plaintiffs‘ theatre to
reach a determination that the movie was a public nuisance.244 Although the Council argued that
the meaning of science precluded copyright protection for obscenity, the Ninth Circuit rejected
this argument, failing even to address the meaning of science.245 The court instead cited public
policy and the opinion of David Nimmer as reasons to follow Mitchell.246
3. The Public
Modern trends in copyright records indicate a public that is oblivious to a restrictive
meaning of science in the Copyright Clause. Yet besides its ignorance, the public may have
played a significant role in the current construction of science as a meaningless term in the
Copyright Clause.
The public may have influenced current judicial construction through
invoking three distinct cultural shifts—although this assertion I cannot prove.
The first cultural shift constitutes a change in public opinion regarding entertainment.
Entertainment has replaced education. Society‘s opinion of entertainment stands in complete
opposition to its opinion at the time of the Framing. The multi-billion dollar entertainment
242
1 NIMMER ON COPYRIGHT § 2.17 at 2-194.2 (1980) (describing the court‘s reasoning in Mitchell as ―the most
thoughtful and comprehensive analysis of the issue‖). Nimmer continues this rhetoric today. NIMMER, supra note
1, at § 2.17 at 2-197 (same).
243
666 F.2d 403, 405 (9th Cir. 1982).
244
Id. at 404.
245
Id. at 405-06.
246
Id. at 406. More recently the Ninth Circuit addressed a similar issue in Dream Games of Arizona v. PC Onsite,
561 F.3d 983 (9th Cir. 2009). There the question was whether a work that was used illegally (bingo computer
program in a state that prohibits gambling) could receive copyright protection. Id. at 990. The Ninth Circuit did not
touch on the constitutional basis for granting protection, but instead addressed policy reasons, citing Belcher v.
Tarbox, 486 F.2d 1087 (9th Cir. 1973), discussed supra note 228, Mitchell, and Nimmer as reasons to allow
protection. Id. at 990-91.
72
industry reflects popular society‘s high opinion of creative expression. And this societal opinion
works its way into judicial thought. Consider some of the modern Supreme Court cases that
touch upon the meaning of science. Aiken concerns the right of public performance in musical
compositions; Sony concerns movies and television shows; and Campbell concerns pop music.
The subject matter of these copyrights suggests entertainment more than education. These
modern cases fit much better into a Copyright Clause that seeks to promote creativity than one
that seeks to promote education. Thus, in view of cultural acceptability, and indeed high
priority, along with overwhelming demand that all levels of society today place on
entertainment, it unsurprising that courts would construe the Copyright Clause in a way that
offers protection to that purpose of expression.
Related to the cultural shift toward entertainment is the second shift in the economic
importance of entertainment. As entertainment has become popular, so has its industry become
profitable. Now an essential sector of the modern economy, the entertainment industry poses as
a formidable economic force that courts cannot ignore. In short, courts have acquiesced to the
commercial convenience of ignoring science. Money now drives copyright. Science gets in the
way. As between money and a word‘s meaning, courts have chosen the former.
The third cultural shift occurred at about the same time that the modern interpretation of
science emerged. The decades of rebellion—the 1960s and 70s—beget new cultural norms.
Truth became relative and chastity obsolete. Most assuredly the law was not immune from the
cultural shift, especially in speech doctrines, which reflected an expanding view of tolerance.
Untruths became acceptable in New York Times v. Sullivan.247 Obscenity was rethought in
247
376 U.S. 254 (1964).
73
Miller v. California.248 Coarseness was valued in Cohen v. California.249 The call for tolerance
in the culture meant breathing space for speech: court were to expand, tolerate, and protect all
sorts of expression. And so they went to work to do just that, protecting expression every way
that they knew how, including through copyright.250 Expanding protection of expression meant
an expansion in the doctrines regulating it: free speech and copyright. Hence, for expression that
lie at the margins of acceptability, it was to be protected from extinction—both extinction by an
act of suppression and extinction by an absence of compensation. To be true to this expansion of
speech promotion, copyright needed to expand its coverage to encompass the same speech at the
margins which free speech had included.
III. The Meaning of Science Restored
I propose that courts should courts return a discriminatory meaning to science in the
Copyright Clause. To this end I submit two proposals. The first proposal is to uphold the
standard of science as articulated in Higgins v. Keuffel and upheld in Bleistein v. Donaldson.
Courts must recognize that certain obvious purposes cannot be construed as promoting science.
They must decline protection for a narrow and obvious group of expressive purposes.
The second proposal is to apply the meaning of science as understood at the time of the
Framing. Works whose purpose neither serves a branch of study nor is not instructive in nature
should not be protected under the Copyright Clause. Instead, copyright for such works that fail
to promote science should be recognized under the Commerce Clause.
These two proposals are discussed in the sections below.
248
413 U.S. 15 (1973).
249
403 U.S. 15 (1971).
250
See Chistopher A. Cotropia & James Gibson, The Upside of Intellectual Property’s Downside, 57 UCLA L. REV.
921, 962 (2010) (―By the 1970s, however, changing social attitudes and the development of a robust free speech
jurisprudence had set the stage for a reexamination of copyright‘s policy toward pornography.‖).
74
A. Narrow Set of Purposes Outside of Science
Consistent with the standard of science that courts employed during the latter-nineteenth
and mid-twentieth centuries, courts today should recognize that certain obvious purposes are
inconsistent with the promotion of science. Expression intended to defraud its audience, libel,
cannot be construed as promoting science. Nor can expression intended to appeal to the prurient
interest, obscenity. Nor can expression that incites to violence. Nor can any expression that is
not protected by the First Amendment.
My first proposal therefore places works whose purpose lies outside of First Amendment
protection outside of copyright protection. This proposal would adopt the standard for science
articulated in Higgins that science requires an inquiry into the value of a work‘s purpose, as well
as the standard articulated in Bleistein that only the most narrow and obvious purposes should be
recognized as falling outside the scope of copyright. The narrow and obvious purposes that fall
outside of copyright protection are those that fall outside of First Amendment protection.
Accordingly, the proposal is relatively modest in that it would affect only a small class of works.
Its specific effect would be to reverse the Fifth Circuit‘s Mitchell decision and kill the growing
support for that doctrine.
This proposal is desirable for two reasons. First, it would be truer to the original meaning
of science in the Copyright Clause than the test that courts presently employ. Subscribing to a
meaning of science that encompasses everything expressed, under the guise of upholding the
original meaning, courts offend reason, and thereby the rule of law. This proposal therefore
alleviates that offense by recognizing that science does in fact discriminate against works that are
inconsistent with its meaning of promoting a system of knowledge. The proposal restores some
meaning to science, restoring intellectual honesty to the rule of law.
75
Second, public policy does not support the encouragement of expression that not even the
Free Speech Clause recognizes as worthy of encouragement.
Copyright as an economic
incentive for expression should not serve to create incentives for expression that is so undesirable
that even free speech doctrines will not protect from abridgment. The proposal makes sense
simply because it would bar an incentive for producing speech that the law refuses to recognize
as worthy of protecting from banishment.
B. Narrow Set of Purposes Within Science
Unlike my first proposal that posits a narrow set of obvious purposes that courts should
recognize as not falling within the meaning of science, my second proposal posits a narrow set of
obvious purposes that courts should recognize as falling within the meaning of science. Only
works that satisfy the meaning of science as originally understood at the Framing should receive
protection under the Copyright Clause. As a system of knowledge that comprises distinct
branches of study, science should require copyrightable works to have a purpose that either is
instructive in nature or serve a branch of study. More specifically, the primary inferable purpose
of works must be educational, scholastic, or research-oriented.
Hence, rather than merely
denying protection for the narrow and obvious set of purposes that fall outside of protection,
courts should examine each particular work‘s purpose to analyze whether it is protectable.
Science should be a highly restrictive term, requiring works to serve a relatively narrow set of
purposes that comport with its original meaning.
This proposal would deny protection for most works that now fall comfortably within the
scope of the Copyright Clause. There are far more works that exist to entertain than to educate.
My proposed interpretation of science, then, would seem to eliminate incentives to create most
creative works that society values today. But in fact, it does no such thing. In addition to
construing science in a way that restricts the scope of the Copyright Clause, I propose that works
76
which do not promote science, yet further commerce, should receive copyright protection under
the Commerce Clause.251 Copyright under the Commerce Clause would be free of the restriction
in the Copyright Clause—science. Commerce-Clause copyright would enable protection for all
works that were not educational, scholastic, or research-oriented.
Nothing in the current
Copyright Act need change, for the Commerce Clause would protect any work that would fall
outside the Copyright Clause.252
1. Weak Copyright Under the Commerce Clause
At first glance, it might seem that there would be no effect of construing science
according to its original meaning where the Commerce Clause compensates for the breadth of
works that the Copyright Clause would no longer cover.
However, copyright under the
Commerce Clause would not likely yield the same strength of protection as copyright under
Copyright Clause. The difference in strength of copyright protection would be manifest because
of the tension between copyright‘s monopoly over expression and free speech principles.
Specifically, courts have recognized the tension between a copyright holder‘s right to suppress
others from repeating his expression and those others‘ right to speak expression. Copyright
monopolizes speech. In resolving this tension, courts defer to copyright over free speech on the
grounds that because the Free Speech Clause and the Copyright Clause were adopted close in
time, the Framers must have viewed copyright‘s monopoly over speech as compatible with free
251
Courts have endorsed the view that Congress may legislate copyright under the Commerce Clause with regard to
works that could not be copyrighted under the Copyright Clause. See e.g., United States v. Moghadam, 175 F.3d
1269, 1277-78 (11th Cir. 1999); Kiss Catalog v. Passport, 405 F. Supp.2d 1169 (C.D. Cal. 2005); cf. United States v.
Martignon, 492 F.3d 140 (2d Cir. 2007).
252
Of course there are several constitutional issues that surround this proposal. Does this proposal violate the
Commerce Clause? Does the Copyright Clause reserve powers to the states? Do the restrictions of the Copyright
Clause implicitly apply to copyrights legislated under the Commerce Clause? These and other questions arise in
considering my proposal. I do not address them here, for they fall outside the scope of this Article. Such questions
and further details of the proposal I examine in a future article.
77
speech principles.253 Yet according to this reasoning, the Framers would have viewed the
compatibility of copyright and free speech only with respect to the scope of copyright in the
Copyright Clause. They would have viewed the monopoly of expression as permissible only
insofar as that expression promoted science. Copyright without the science restriction—or for
that matter without the ―writings‖ and ―limited times‖ restrictions—would not be viewed with
the same degree of free speech compatibility as copyright under the Copyright Clause. In short,
the Constitution does not support an inference that the Framers viewed copyright without a
science restriction as compatible with free speech principles, and so copyright under the
Commerce Clause would likely be weaker than copyright under the Copyright Clause.
Of course a weaker copyright under the Commerce Clause would not imply that
copyright could not exist at all under the Commerce Clause. As a general matter, congressional
restriction of expression under the Commerce Clause is permissible, as manifest by federal
trademark law.
The weakness of copyright under the Commerce Clause, then, would be
manifest by stronger doctrines in copyright law that the Court has viewed as built-in First
Amendment accommodations.254 Specifically, the Court has held that fair use and the ideaexpression dichotomy are safeguards of free speech. These doctrines courts would need to apply
much more robustly to copyright under the Commerce Clause than they have applied to
copyright under the Copyright Clause.
And as these doctrines admit a great degree of
discretionary judgment, courts would have the flexibility to favor their robust application.
In
applying fair use and in determining the line between idea and expression, courts should
253
See Eldred v. Ashcroft, 537 U.S. 186, 219 (2003) (―The Copyright Clause and First Amendment were adopted
close in time. This proximity indicates that, in the Framers‘ view, copyright‘s limited monopolies are compatible
with free speech principles.‖).
254
See id. at 219.
78
accordingly favor user interests over those of copyright holders who hold copyrights under
Commerce Clause.
2. Objections
Two objections may be raised against this proposal. The first is that the proposal would
produce great uncertainty for copyright holders. The second is that this proposal would require
judges to be arbiters of copyright protection, the evil that Justice Holmes warned against in
Bleistein v. Donaldson. I examine each objection in the subsections below.
a. Uncertainty in Science
The first objection decries uncertainty that might result from requiring an inquiry into the
purpose of works. Such an inquiry would not always be straightforward. Whether the purpose is
educational, scholastic, or research-oriented is often debatable. Would novels that teach a moral
be considered sufficiently educational? Would they qualify as literature whose purpose serves a
branch of study? Or consider musical compositions. It is arguable that all compositions are
instructional because they instruct how to perform.
For that matter, much of modern
entertainment could be said to be instructional whenever they include a moral teaching. Thus,
charging courts to decide whether subject matter relates to science could yield great uncertainty.
It would be difficult for many copyright holders to know whether they would have the stronger
protection of Copyright-Clause copyright as opposed to the weaker protection of CommerceClause copyright.
I do not view this objection as a reason to reject my proposal. As an initial matter, courts
already engage in a purposive inquiry in copyright law. To determine whether a use is fair,
courts must examine the purpose and character of a defendant‘s use. And this inquiry is not seen
as one that produces excessive complexity or great uncertainty. In the fair use analysis, courts do
not usually have trouble determining whether a work has a purpose that is educational,
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scholastic, or research-oriented. My proposal would require a similar sort of purposive inquiry.
The purposive inquiry in my proposal would determine whether a person could gain copyright
rewards rather than the purpose inquiry in fair use determining whether a person could escape
copyright penalties. In effect, the same sort of purposive inquiry would address protection on the
front end and liability on the back end.
Yet even if the inquiry yields great uncertainty, that uncertainty is justified. Users of
copyrighted expression face the same sort of uncertainty in assessing whether their use is
permissible under the doctrines of fair use and idea-expression dichotomy.
Because these
doctrines examine each use on a case-by-case basis, a user never knows whether the use is fair
until a court has ruled accordingly. Hence, the uncertainty that copyright holders would face in
assessing whether their work complies with science would be analogous to the uncertainty that
users now face in assessing whether their use is fair. In short, copyright holders would face
uncertainty in creating the expression; fair users face uncertainty in using the expression. Of
course the uncertainty that copyright holders face would be much less consequential than the
uncertainty faced by fair users: copyright holders would face the possibility of a weaker
copyright under the Commerce Clause if they misconstrue science, whereas fair users face the
possibility of great financial penalties if they misconstrue fairness. Nevertheless, introducing
more uncertainty into copyright law through the meaning of science would, in my view, merely
help to equalize competing positions in a fight over monopolizing speech.
b. Subjective Judicial Assessment
The second objection is that the inquiry into purpose of the work would require judges to
impose their subjective beliefs in defining the proper subject matter of copyright according to a
flexible term—science. The proposal seems to run headlong into the danger that Justice Holmes
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warned against in Bleistein.255 Doesn‘t my proposal require judges to be the final arbiters of
expression?
The answer is that to a certain extent, it does. But judges do this all the time in
copyright—despite Holmes‘s warning. Fine lines must be drawn in many instances. Justice
Joseph Story wasn‘t kidding when he described copyright as the ―metaphysics of the law.‖256
Judge Learned Hand described the line between idea and expression as ―arbitrary,‖ yet he
recognized that the arbitrariness was ―no excuse for not drawing it.‖257 The Second Circuit has
described fair use as ―the most troublesome in the whole law of copyright‖—a doctrine that, all
judges would agree, turns on subtle and subjective value judgments. 258 In determining the rights
to repeat expression, the line between private exclusion and public good has always required
those trained only in the law to constitute themselves final judges of expression.259 So to the
extent that my proposal requires judges to make hard calls, copyright well establishes that role
for them.
255
188 U.S. 239, 251 (1903) (―It would be a dangerous undertaking for persons trained only to the law to constitute
themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.‖).
256
See Folsom v. Marsh, 9 F.Cas. 342, 344 (C.C.D.Mass.1841) (No. 4901) (Story, J.).
257
In Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930), Judge Hand explained:
[T]here is a point in this series of abstractions [from expression] where they are no longer
protected, since otherwise the playwright could prevent the use of his ‗ideas,‗ to which, apart from
their expression, his property is never extended. Nobody has ever been able to fix that boundary,
and nobody ever can. . . . [W]hile we are as aware as any one that the line, where ever it is drawn,
will seem arbitrary, that is no excuse for not drawing it; it is a question such as courts must answer
in nearly all cases.
See also Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960) (L. Hand, J.)
(―Obviously, no principle can be stated as to when an imitator has gone beyond copying the ‗idea,‘ and has
borrowed its ‗expression.‘ Decisions must therefore inevitably be ad hoc.‖).
258
Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939).
259
This is not entirely true, as it has also required juries to consider the issue. I would not be against juries making
the determination of science. Cf. Ned Snow, Judges Playing Jury: Constitutional Conflicts in Deciding Fair Use on
Summary Judgment, 44 U.C. DAVIS L. REV. 483, 555 (2010) (advocating a return to jury consideration of fair use
issues).
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Putting aside the fact that copyright is not immune from judges making hard calls, my
proposal alleviates much of the tension that Justice Holmes warned against in Bleistein. Holmes
was concerned about judges determining whether copyright protection exists based on the
content of the work.260 But my proposal offers protection regardless of whether a work‘s content
satisfies the meaning of science in the Copyright Clause. Albeit a weaker form of protection, the
copyright protection that the Commerce Clause affords works would alleviate the dangers that
Holmes warned against when judges might erroneously fail to recognize a work as promoting
science. Incentives for the production of that work would still exist. Hence, judges determining
the value of works is not as problematic in my proposal as it was in the situation before Holmes,
for my proposal preserves an economic incentive to produce works that do not satisfy the
meaning of science, i.e., copyright under the Commerce Clause.
CONCLUSION
The Framers intended the Copyright Clause to promote the progress of a system of
knowledge comprising distinct branches of study. In the parlance of their time, the Framers
intended the Clause to promote the progress of science.
Modern copyright jurisprudence
interprets the Framers‘ view of copyright as the engine of free expression. This is mistaken. The
Framers viewed copyright is the engine of expression that promotes the progress of science. And
not all free expression promotes science.
260
A work‘s content is different than a work‘s purpose. Purpose is one step removed from content. A work‘s
purpose represents a categorical abstraction from the actual content of the work, and the value judgment required to
assess a more abstract subject appears more uniformly held than that required to assess a specific subject matter.
For instance, the value of the purpose of a work that purports to explain history is more readily recognized than is
the value of the actual content of that historical explanation. That is to say, the judgment that a work has a purpose
that serves a historical purpose, which is a branch of study represents a uniformly held opinion, whereas the
judgment that The Da Vinci Code represents a valuable work of history is controversial. Thus, the inquiry into a
content‘s purported purpose, rather than the actual content, appears consistent with Holmes‘s message against
judicial value judgments of actual content.
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Any court or commentator who construes science differently cannot be construing it
according to its original meaning in the Constitution. No credible evidence supports any other
interpretation.
Indeed, if modern courts continue their rhetoric of adhering to the original
meaning of science, they must follow the interpretation in this Article. Failure to follow this
interpretation would expose them as teleologists rather than originalists. If courts construe
science to serve a particular purpose other than that which the Framers intended, they can no
longer rely on an anachronistic understanding of science to conceal that purpose. The meaning
of science revealed, courts must either apply it or account for ignoring it.
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