The Unitary Progress Clause: District of Columbia V. Heller and the Structural Interpretation of the Progress Clause

Article excerpt

I. Introduction
II. The Distributive Reading
        A. Justice Thompson's Dissent in Wheaton v. Peters
        B. Richard De Wolf and Karl Lutz
        C. Possible Constitutional Justifications for the Modern
           Distributive Reading
III. The Heller Framework
        A. The Supreme Court's Heller Decision
        B. Heller and the Progress Clause
IV. The History of the Patent and Copyright Laws
        A. Preliminary Observations on the Progress Clause
        B. Pre-Ratification History of Patent and Copyright
           Laws
           1. English Precedent
              a. "Industrial" Letters Patent and the Statute of
                 Monopolies
              b. Printing Patents and the Stationers' Company
              c. The Statute of Anne
              d. Conclusions to be Drawn from English
                 Precedent
           2. American Precedent
              a. Pre-Constitutional Colonial and State
                 Progress Laws
              b. The Constitutional Convention
              c. Conclusion from American Precedent

        C. Early Post-Ratification History of American Patent
           and Copyright Laws

           1. Statutory Language
           2. Statutory Structure
           3. Judicial Interpretation
           4. Conclusion to be Drawn from Post-Ratification
              History
V. The Unitary Reading Under Heller
        A. The Textual Interpretation
        B. The Heller Interpretation
        C. Observations on the Unitary Reading
VI. Conclusion

I. INTRODUCTION

The Progress Clause of the Constitution gives Congress the power "[t]o 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." (1) This Clause is the source of Congress's power to enact the patent and copyright laws. (2) The Supreme Court has been turning increasingly to the Progress Clause to answer many important questions in intellectual property law. (3)

In 1949, Karl Lutz published an influential article that argued that the Progress Clause should be given a distributive reading. (4) Since that time, the distributive reading has been embraced by scholars, the legislature, and the courts. (5) The distributive reading extracts two separate powers from the Progress Clause. (6) The first is the copyright power: to promote the progress of science by securing for limited times to authors the exclusive right to their respective writings. (7) The second is the patent power: to promote the progress of the useful arts by securing for limited times to inventors the exclusive right to their discoveries. (8)

How the Progress Clause is read dictates the answers to many questions in patent and copyright law. For example, the distributive reading's requirement that patents only apply to useful arts has contributed to the denial of patent protection for some computer programs (9) and business methods. (10) With respect to copyright, the "functional" aspects of otherwise clearly expressive works have been denied protection, in some cases resulting in the entire work being denied copyright protection. (11)

This article responds to Lutz's arguments. Through historical and constitutional examination, the article concludes that the distributive reading is not correct. To this end, it extends the arguments first put forth by Professor Dotan Oliar, wherein he suggests that the current reading of the Progress Clause "rests on shaky grounds," (12) and describes the reading as "indefensible." (13) Instead, he proposes what I refer to herein as the "unitary reading" of the Progress Clause. Under this reading, "science" and "useful arts" are not the separate domains of copyright and patent as they are under the dominant reading today. Rather than suggesting that the unitary reading is simply the better solution, however, I suggest that the Supreme Court's recent analysis of the Second Amendment in District of Columbia v. …