Copyright, the Constitution & Progress

52 Pages Posted: 16 Jun 2004

See all articles by Raymond Shih Ray Ku

Raymond Shih Ray Ku

Case Western Reserve University School of Law

Date Written: June 2004


In this essay, Professor Ku places the current legal controversy surrounding Internet file sharing into historical and theoretical context, and sets forth a framework for courts to promote progress when interpreting copyright and the Constitution in response to new technologies of dissemination. This essay builds upon his existing scholarship, in which Professor Ku argues that the new economics of digital technology question the application of copyright's exclusive rights to file sharing because peer-to-peer technology eliminates the need for distributor middlemen. And, a system of levies and compulsory licenses would guarantee compensation for artists while providing the public with unlimited access to the collective works of humanity. Professor Ku argues that courts should follow the precedent established by the Supreme Court in the Charles Rivers Bridge v. Warren Bridge decision involving a similar dispute over exclusive rights at the dawn of the Commercial and Industrial Age and narrowly interpret the Copyright Act and the Constitution to accommodate non-linear progress. This approach recognizes that for progress to occur property rights and markets may be creatively destroyed and paradigms may shift. The recognition of the need to accommodate non-linear progress explains the Supreme Court's historic approach when applying copyright to new media and provides a framework for evaluating whether congressional efforts to secure exclusive rights in new media are consistent with its power to promote the progress of science and useful arts.

Keywords: Intellectual Property, Copyright, Cyber Law, Internet law, Constitutional Law, Internet File Sharing, Charles Rivers Bridge v. Warren Bridge 36 U.S. 420 (1837)

JEL Classification: K11, K19, K20, K40, O34, O38

Suggested Citation

Ku, Raymond Shih Ray, Copyright, the Constitution & Progress (June 2004). Case Legal Studies Research Paper No. 04-8, Available at SSRN: or

Raymond Shih Ray Ku (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States

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