Talk:Copyright Clause
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This page needs help from legal professionals / students. This is of serious interest to the Wikipedia community and is currently inadequate. There're a number of cases defining and limiting the scope of these powers that should be cited here with brief explanations for them. We need more legal background as organized and succinct as possible. LH 07:21, 29 September 2006 (UTC)
[edit] Attribution
Material in this article was merged in from Intellectual property clause, which now redirects here. BD2412 T 19:11, 24 December 2005 (UTC)
- Is "Copyright Clause" an accurate title though? Althought "intellectual property" is a problematic term, this clause also applies to patents. --Balleyne (talk) 05:34, 21 March 2008 (UTC)
- I've heard it referred to as the Progress Clause, which redirects here. Lawrence Lessig refers to it as such in Free Culture. -FrankTobia (talk) 13:47, 21 March 2008 (UTC)
- Ok, I did a Lexis search of federal cases and this is what I came up with:
- Patent and Copyright Clause: 28 hits.
- Copyright Clause: 178 hits (including the above, ergo 150 are Copyright Clause alone).
- Patent Clause: 143 hits, but at least a dozen of those refer to clauses in contracts rather than the Constitution.
- Copyright and Patent Clause: 23 hits.
- Intellectual Property Clause: 17 hits.
- Progress Clause: 9 hits, but most refer to provisions in contracts rather than the Constitution.
- I suppose "Patent and Copyright Clause" would be sufficiently inclusive. bd2412 T 01:54, 22 March 2008 (UTC)
- Ok, I did a Lexis search of federal cases and this is what I came up with:
- So I did some poking around. Within this paper I found "('Progress Clause,' formerly 'Copyright and Patent Clause,' 'Intellectual Property Clause,' or 'Exclusive Rights Clause')", which leads me to believe that the clause in question was once referred to by a number of different names, and is now referred to as the Progress Clause. This could explain your Lexis findings. Or it could mean something else entirely. bd2412, can you find the dates of the most recent cases for each different term and see if that changes things?
- Or does anyone know an IP lawyer we can ask? -FrankTobia (talk) 04:51, 22 March 2008 (UTC)
- As it happens, I am an IP lawyer (convenient, no?). I would call it either the Copyright Clause or the Intellectual Property Clause - maybe the Patent and Copyright Clause, but I have never heard it called the Progress Clause or the Exclusive Rights Clause before this discussion. Of the cases that I saw, I was struck that in the fairly recent Supreme Court case of Eldred v. Ashcroft, different justices referred to it in their various opinions by the first three names I mention in this paragraph. However, that was a copyright case, so they may have been less inclined to mention the patent part. bd2412 T 04:57, 22 March 2008 (UTC)
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- [EC] "Progress Clause" is just wrong here; extreme minority usage, almost unique to Lessig. In the last few years it appears one Circuit opinion used it: Golan v. Gonzales, 501 F.3d 1179 (10th. Cir 2007), and most of the opinion calls it the "Copyright Clause." This case was argued by Lessig, among others. A District Court used it in Kahle v. Ashcroft, 72 U.S.P.Q.2D (BNA) 1888 (N.D.Cal. 2004), but only quoting the briefs, and Lessig was also involved in Kahle. It doesn't appear "Progress Clause" had ever been used before. In contrast, "Copyright Clause" has been used over a dozen times since Eldred (U.S. 2003), which used it among other variants. All of these terms are in current use except "Progress Clause."
| term | last use | last Supreme Court use |
|---|---|---|
| "Progress Clause" | Golan v. Gonzales, 501 F.3d 1179 (10th. Cir 2007) (in passing, prefers "Copyright Clause") | Never. |
| "Copyright Clause" | Golan v. Gonzales (10th. Cir 2007) | Eldred v. Ashcroft (U.S. 2003) |
| "Patent and Copyright Clause" | Golan v. Gonzales (10th. Cir 2007) | Eldred |
| "Patent Clause" | In re Nuijten, 500 F.3d 1346 (Fed. Cir. 2006) | Cent. Va. Cmty. College v. Katz, 546 U.S. 356 (2005) (in parenthesis) |
| "Copyright and Patent Clause" | Luck's Music Library, Inc. v. Gonzales, 407 F.3d 1262 (D.C.Cir. 2005) | Eldred |
| "Intellectual Property Clause" | No COA use since Eldred | Eldred |
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- Haha, I didn't realize Lessig is the only person calling it the Progress Clause. Interesting, though, that so many different names for it show up in Eldred v. Ashcroft. I'm happy either way, whether this article stays here or moves to Patent and Copyright Clause. -FrankTobia (talk) 05:41, 22 March 2008 (UTC)
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