Copyright, con law, and compelled speech

[Malla Pollack]

In my (in this case very unhumble) opinion, the so-called mesh between
current intellectual property rules and the Constitution (both the First
Amendment and the IP Clause itself) is a myth.  As Patterson has pointed
out, the author& private property centered vision of Copyright is a
construct of the 19th century, not the Framers' and Ratifiers'
generation.  The courts are so caught up in giving value back to private
rights holders that they simply refuse to see the problems.  When the
Supreme Court sets out even a minor limit (as it did in Feist) the lower
federal courts insist on reading the teeth out of the limit.  Shuba
cited the recent 2d Cir case limiting the merger doctrine as a clear
analysis; I consider it a technically brilliant attempt to get around
the Supreme Court's logic in Feist.  Today the Supreme Court is hearing
oral argument on J.E.M. Ag. Supply v. Pioneer In'l, IMnowHO this is the
perfect case for the Supreme Court to use to actually require
Congressional consideration of the "promote the progress of science and
the useful arts" limitation in the constitutional IP power.  If the
Court goes this way, I would hope that in later cases it would have the
guts to hold business method patents unconstitutional.


Malla Pollack
Northern Illinois Univ., College of Law
DeKalb, Illinois 60115
815-753-1160; (fax) 815-753-9499
mallapollack at niu.edu