The Regressing Progress Clause: Rethinking Constitutional Indifference to Harmful Content in Copyright
62 Pages Posted: 7 Feb 2013 Last revised: 17 Feb 2014
Date Written: October 23, 2013
The Constitution’s Progress Clause purports to restrict Congress’s copyright power to works that “promote the Progress of Science and useful Arts.” For most of the past two centuries, this Clause has set a minimal content-based standard for copyright eligibility. It denied protection for a work whose content did not rise to the level of useful knowledge, in that the work either lacked compositional value or portrayed an immoral or unlawful subject matter. As evidenced by judicial and scholarly writings, this construction of the Progress Clause was consistent with the 1903 decision in Bleistein v. Donaldson Lithographing Co., where the Court warned against judges imposing their own aesthetic values in determining copyright eligibility. In recent years, however, courts and commentators have subtly changed the standard of the Progress Clause from useful knowledge to general knowledge. And some courts have construed the Progress Clause as applying only to the Copyright Act as a whole — not to individual works. These changes in the interpretation of the Progress Clause have led some courts to extend copyright to all subject matter, ignoring the content-restrictive function of the Progress Clause altogether. Yet that function serves a valuable constitutional purpose. Some types of expression fail to promote, and even impede, the progress of science and useful arts. Although standards of progress may change, the law’s ability to apply standards should remain constant under the Progress Clause. This Article proposes that the Progress Clause once again serve as a content-based standard for copyright eligibility.
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