What is Congress Supposed to Promote?: Defining 'Progress' in Article I, Section 8, Clause 8 of the United States Constitution, or Introducing the Progress Clause

Abstract

Repeated Supreme Court dicta characterize the Intellectual Property Clause of the United States Constitution as containing both grants of power and limitations. The Court, however, has yet to explicate the limit imposed by the Clause's opening words, "to Promote the progress of Science and the useful Arts." Scholars and jurists have assumed without investigation that "progress" bears the meaning most potent in Nineteenth Century American civilization: a continuous qualitative improvement of knowledge inevitably leading to consensus and human happiness. This article presents empirical evidence that the 1789 meaning of "progress" is "spread." The original meaning of Article I, section 8, clause 8 of the Constitution is that Congress has power to pass only such time-limited copyright and patent statutes as increase the dissemination of knowledge and technology to the public. Congress' modern focus on providing maximum control and economic benefit to copyright holders is constitutionally illegitimate. The Court, therefore, should hold the Copyright Term Extension Act to be unconstitutional when it decides Eldred v. Ashcroft next Term. The same fate should await the anticircumvention provisions of the Digital Millennium Copyright Act. Article I, section 8, clause 8 is most properly referred to as the "Progress Clause."

Keywords: Intellectual Property, Copyright, Progress, Original Meaning