Vol 7 No 1 - Roger Williams University School of Law
Vol 7 No 1 - Roger Williams University School of Law Vol 7 No 1 - Roger Williams University School of Law
the parameters of the propertization of information throughlegislative means.128 In essence, the argument is that the IPclause is both a grant of power and a limitation on governmentpower ensuring such fundamental information rights of user andaccess, such as the right to ideas, the public domain and fairuse.129An even more interesting argument arising from thisapproach is whether state governments are in any way limited bythe specific requirements of the IP clause. In other words, doesthe IP clause in any way preempt state legislation on this topic?Goldstein held that the American states have, subject topreemption by legislation,130 a concurrent power to legislate uponintellectual property rights.131 In that case, the Supreme Courtimplied that the states are not constrained by any limits in thefederal IP clause as the legislation in question, which the Courtupheld, allowed perpetual duration of copyright—in contrast tothe limited times requirement in the federal clause.132The clause most likely to undermine the IP clause at thefederal level is the Commerce Clause. The United StatesCommerce Clause reads that Congress has the legislativeauthority “[t]o regulate Commerce with foreign Nations, andamong the several States . . . .”133 The Australian CommerceClause reads that the Commonwealth Parliament may make lawsfor the peace, order and good government of the Commonwealthwith respect to trade and commerce with other countries andamong the States.134In Moghadam, the court refused to decide whether the antibootleggingstatute could be upheld under the Copyright Clause;they were of the view that it came within the Commerce128. See Marci A. Hamilton, Database Protection and the Circuitous Route Aroundthe United States Constitution, in International Intellectual Property and the CommonLaw World (Charles E.F. Rickett & Graeme W. Austin eds., 2000); see also, Benkler,supra note 10, at 440-46; Paul J. Heald & Suzanna Sherry, Implied ConstitutionalLimits on Congressional Power: Construing the Commerce Power in Light of theIntellectual Property Clause, 2000 U. Ill. L. Rev. 1119 (2000); William Patry, TheEnumerated Powers Doctrine and Intellectual Property: An Imminent ConstitutionalCollision, 67 Geo. Wash. L. Rev. 359 (1999).129. See John Deere Co., 383 U.S. at 5.130. See, e.g., 17 U.S.C. § 301 (1994 & Supp. V 1999).131. Goldstein, 412 U.S. at 560.132. Id. at 560-61.133. U.S. Const. art I, § 8, cl. 3.134. Aust. Const. § 51(i).
Clause.135 The court reviewed the two opposing precedents inlight of the Commerce Clause in the face of other clauses andconcluded that it was not against the spirit of the Constitution toallow the statutes to be upheld under the Commerce Clause. Theyreasoned that this type of legislation supplemented copyrightprotection and should be allowed.136The court started out by confirming that section 2319Aconcerned conduct that had a substantial effect on commercebetween the several states and commerce with foreign nations,namely the sale of bootleg compact discs. The court explained thatthe more interesting question was whether Congress could use theCommerce Clause to avoid the limitations that might prevent itfrom passing the same legislation under the Copyright Clause.They explained:that in general, the various grants of legislative authoritycontained in the Constitution stand alone and must beindependently analyzed. In other words, each of thepowers of Congress is alternative to all of the otherpowers, and what cannot be done under one of them mayvery well be doable under another. 137The court noted that this general approach had been appliedpreviously in a context involving the Copyright Clause and theCommerce Clause, namely, the Trade-Mark Cases.138 In thosecases, the constitutional validity of an early trademark lawenacted by Congress in 1876 was at issue. The Supreme Courtheld that the Copyright Clause could not sustain the 1876 Actbecause “[t]he ordinary trade-mark has no necessary relation toinvention or discovery,” which were the hallmarks of protectablesubject matter under the Copyright Clause.139 The Courtexplained that trademarks were inherently commercial; theconcept behind the 1876 Act (and modern trademark law) was notto encourage intellectual and artistic development, but rather toprotect businesses from predatory behaviour in themarketplace.140 This concept was said to be outside the ambit of135. Moghadam, 175 F.3d at 1269.136. Id.137. Id. at 1277.138. See United States v. Steffens, 100 U.S. 82 (1879).139. Id. at 94.140. See id. at 94-99.
- Page 44 and 45: the sui generis right mainly serves
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- Page 48 and 49: directly or indirectly.159 In other
- Page 50 and 51: of resources that qualifies that po
- Page 52 and 53: wish to encourage private lawsuits,
- Page 54 and 55: contract.”185 While section 1405(
- Page 56 and 57: The Directive will inevitably drive
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- Page 72 and 73: only such as are original, and are
- Page 74 and 75: emedies set forth in section 1406.T
- Page 76 and 77: eproduced, though there be no ingen
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- Page 82 and 83: Because, in part of the joint reaso
- Page 84 and 85: even by the plaintiffs today.86The
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- Page 88 and 89: head of power. It is not clear whet
- Page 90 and 91: elationship of power between the Co
- Page 92 and 93: history dealing with either provisi
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- Page 104 and 105: ejected this purported distinction
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- Page 110 and 111: that a monopolist should not seek t
- Page 112 and 113: motivating force.While antitrust or
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- Page 122 and 123: In response to Intel’s argument t
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- Page 134 and 135: for circumventing a technological p
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- Page 138 and 139: circumventing a TPM in order to loo
- Page 140 and 141: “staple article of commerce” do
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the parameters <strong>of</strong> the propertization <strong>of</strong> information throughlegislative means.128 In essence, the argument is that the IPclause is both a grant <strong>of</strong> power and a limitation on governmentpower ensuring such fundamental information rights <strong>of</strong> user andaccess, such as the right to ideas, the public domain and fairuse.129An even more interesting argument arising from thisapproach is whether state governments are in any way limited bythe specific requirements <strong>of</strong> the IP clause. In other words, doesthe IP clause in any way preempt state legislation on this topic?Goldstein held that the American states have, subject topreemption by legislation,130 a concurrent power to legislate uponintellectual property rights.131 In that case, the Supreme Courtimplied that the states are not constrained by any limits in thefederal IP clause as the legislation in question, which the Courtupheld, allowed perpetual duration <strong>of</strong> copyright—in contrast tothe limited times requirement in the federal clause.132The clause most likely to undermine the IP clause at thefederal level is the Commerce Clause. The United StatesCommerce Clause reads that Congress has the legislativeauthority “[t]o regulate Commerce with foreign Nations, andamong the several States . . . .”133 The Australian CommerceClause reads that the Commonwealth Parliament may make lawsfor the peace, order and good government <strong>of</strong> the Commonwealthwith respect to trade and commerce with other countries andamong the States.134In Moghadam, the court refused to decide whether the antibootleggingstatute could be upheld under the Copyright Clause;they were <strong>of</strong> the view that it came within the Commerce128. See Marci A. Hamilton, Database Protection and the Circuitous Route Aroundthe United States Constitution, in International Intellectual Property and the Common<strong>Law</strong> World (Charles E.F. Rickett & Graeme W. Austin eds., 2000); see also, Benkler,supra note 10, at 440-46; Paul J. Heald & Suzanna Sherry, Implied ConstitutionalLimits on Congressional Power: Construing the Commerce Power in Light <strong>of</strong> theIntellectual Property Clause, 2000 U. Ill. L. Rev. 1119 (2000); William Patry, TheEnumerated Powers Doctrine and Intellectual Property: An Imminent ConstitutionalCollision, 67 Geo. Wash. L. Rev. 359 (1999).129. See John Deere Co., 383 U.S. at 5.130. See, e.g., 17 U.S.C. § 301 (1994 & Supp. V 1999).131. Goldstein, 412 U.S. at 560.132. Id. at 560-61.133. U.S. Const. art I, § 8, cl. 3.134. Aust. Const. § 51(i).
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