The Meaning of Science in the Copyright Clause

By Snow, Ned | Brigham Young University Law Review, March 1, 2013 | Go to article overview

The Meaning of Science in the Copyright Clause


Snow, Ned, Brigham Young University Law Review


ABSTRACT

The Constitution premises Congress's copyright power on promoting "the Progress of Science." The word Science therefore seems to define the scope of copyrightable subject matter. Modern courts and commentators have subscribed to an originalist view of Science, teaching that Science meant general knowledge at the time of the Framing. Under this interpretation, all subject matter may be copyrighted because expression about any subject increases society's store of general knowledge. Science, however, did not originally mean general knowledge. In this Article, I examine evidence surrounding the Copyright Clause and conclude that at the Framing of the Constitution, Science meant a system of knowledge that comprises distinct branches of study. This historically accurate meaning casts doubt on whether a distinct group of expression may be copyrighted-namely, expression that the First Amendment does not protect. I argue that the original meaning of Science cannot support a constitutional copyright of unprotected speech.

ABSTRACT .......... 259

I. INTRODUCTION .......... 260

II. THE MODERN INTERPRETATION OF THE ORIGINAL MEANING .......... 265

A. Authorities .......... 266

B. Interpretive Irregularities .......... 267

1. First-entry fallacy .......... 267

2. Widespread originalism .......... 269

3. Lack of meaning .......... 271

III. THE MEANING OF SCIENCE AT THE FRAMING .......... 276

A. A General Understanding of Science .......... 277

1. The Enlightenment .......... 277

2. The 1786 dictionary .......... 282

B. Legislative History .......... 285

1. Pinckney's proposals .......... 287

2. Madison's proposals .......... 288

C. Textual Analysis .......... 292

1. The juxtaposition of Science and Arts .......... 293

2. The singular-plural inconsistency between

Science and Arts .......... 296

D. Post-Constitution Evidence .......... 300

1. The public understanding .......... 300

2. A Supreme Court Justice .......... 303

3. The 1790 Congress .......... 305

IV. THE MEANING OF SCIENCE RESTORED .......... 306

A. An Interpretation that Excludes Unprotected Speech .......... 306

B. Objections to the Interpretation .......... 310

1. Uncertainty .......... 311

2. Subjective judicial assessment .......... 313

3. Counterproductive result .......... 314

C. Test Case .......... 315

V. CONCLUSION .......... 317

I. INTRODUCTION

The Constitution's Copyright Clause limits the scope of copyright to works that "promote the Progress of Science."1 The meaning of the term Science would thus seem important in determining the boundaries of copyright protection.2 To this end, modern courts apply a purportedly original meaning of Science - general knowledge or learning.3 Under this modern interpretation of the original meaning, if the content of expression adds to society's general store of knowledge, it is copyrightable.4 And because expression regarding any content adds to the general store of knowledge, this interpretation of Science extends copyright to all content.5 Even libel, obscenity, and true threats add to the general store of knowledge; they accordingly would seem copyrightable.6

Or perhaps not. In the recent case of Wong v. Hard Drive Products, Inc., the plaintiff argued that copyright cannot exist in obscene works.7 The Wong court ruled for the plaintiff, although it failed to issue an opinion. In the absence of that opinion, the case raises an interesting question: Does Science in the Copyright Clause encompass expression that the Free Speech Clause fails to protect? Recently, the Supreme Court in Golan v. Holder re-iterated the seeming truism that Science in the Copyright Clause meant knowledge or learning.9 Albeit in dicta, the Golan Court's statement reinforces the teaching that the original meaning of Science contemplates all possible content in copyright. …

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