Go figure. In Golan v. Holder Justice Breyer, joined by (go figure) Justice Alito, found a limit on Congress’s power to enact a statute based on the “Economic Philosophy” as determined by the Courts.
In order “[t]o promote the Progress of Science” (by which term the Founders meant “learning” or “knowledge”),the Constitution’s Copyright Clause grants Congress thepower to “secur[e] for limited Times to Authors . . . the exclusive Right to their . . . Writings.” Art. I, §8, cl. 8. This “exclusive Right” allows its holder to charge a fee tothose who wish to use a copyrighted work, and the abilityto charge that fee encourages the production of new material. In this sense, a copyright is, in Macaulay’s words, a“tax on readers for the purpose of giving a bounty to writers”—a bounty designed to encourage new production. As the Court said in Eldred, “‘[t]he economic philosophy behind the [Copyright] [C]lause . . . is the conviction thatencouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.’” Eldred v. Ashcroft, 537 U. S. 186, 212, n. 18 (2003) (quoting Mazer v. Stein, 347 U. S. 201, 219 (1954)). See T. Macaulay, Speeches on Copyright 25 (E. Miller ed. 1913); E. Walterscheid, The Nature of theIntellectual Property Clause: A Study in Historical Perspective 125–126 (2002) (hereinafter Walterscheid).
The statute before us, however, does not encourageanyone to produce a single new work. By definition, it bestows monetary rewards only on owners of old works—works that have already been created and already are inthe American public domain. At the same time, the statute inhibits the dissemination of those works, foreign works published abroad after 1923, of which there are many millions, including films, works of art, innumerablephotographs, and, of course, books—books that (in theabsence of the statute) would assume their rightful placesin computer-accessible databases, spreading knowledgethroughout the world. See infra, at 10–13. In my view,the Copyright Clause does not authorize Congress to enactthis statute. And I consequently dissent.
Granted, it is based on (of all things!) the Copyright Clause!
But does the Clause empower Congress toenact a statute that withdraws works from the publicdomain, brings about higher prices and costs, and in doing so seriously restricts dissemination, particularly to those who need it for scholarly, educational, or cultural pur- poses—all without providing any additional incentive for the production of new material? That is the questionbefore us. And, as I have said, I believe the answer is no. Congress in this statute has exceeded what are, under any plausible reading of the Copyright Clause, its permissible limits.
…
The fact that, by withdrawing material from the publicdomain, the statute inhibits an important preexisting flow of information is sufficient, when combined with the other features of the statute that I have discussed, to convince me that the Copyright Clause, interpreted in the light ofthe First Amendment, does not authorize Congress toenact this statute
Herbert Spencer anyone? Finding Congress lacks the power to enact laws based on economic rationales. For serious?
Breyer even cites Sorrell (and not his dissent)!
I agree with the majority that, in doing so, this statutedoes not discriminate among speakers based on their viewpoints or subject matter. Ante, at 27. But such considerations do not exhaust potential First Amendment problems. Cf. Sorrell v. IMS Health Inc., 564 U. S. ___, ___ (2011) (slip op., at 8) (finding First Amendment problem in statute that prohibits drug manufacturers fromusing publicly available prescriber-identifying informationin their marketing efforts in part because it “disfavor[ed]specific speakers”); Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 659 (1994) (“Regulations that discriminate among media, or among different speakers within a single medium, often present serious First Amendment concerns”).
This is kinda odd from Justice Breyer (less odd from Justice Alito who has shown himself to be weak on First Amendment argument):
Taken together, these speech-related harms (e.g., restricting use of previously available material; reversingpayment expectations; rewarding rent-seekers at the public’s expense) at least show the presence of a First Amendment interest. And that is enough. [Dayanu!] For present purposes, I need not decide whether the harms to thatinterest show a violation of the First Amendment. I need only point to the importance of interpreting the Constitution as a single document—a document that we should not read as setting the Copyright Clause and the First Amendment at cross-purposes. Nor need I advocate the application here of strict or specially heightened review. I need only find that the First Amendment interest is important enough to require courts to scrutinize with somecare the reasons claimed to justify the Act in order to determine whether they constitute reasonable copyrightrelated justifications for the serious harms, includingspeech-related harms, which the Act seems likely to impose.
And all the sudden Justice Breyer becomes an originalist.
The possibility of eliciting new production is, and alwayshas been, an essential precondition for American copyright protection. The Constitution’s words, “exclusive Right,”“limited Times,” “Progress of Science,” viewed through the lens of history underscore the legal significance of what the Court in Eldred referred to as the “economic philosophy behind the Copyright Clause.” 537 U. S., at 212, n. 18 (brackets omitted). That philosophy understands copyright’s grants of limited monopoly privileges to authors asprivate benefits that are conferred for a public reason—toelicit new creation.
Yet, as the Founders recognized, monopoly is a twoedged sword. On the one hand, it can encourage production of new works. In the absence of copyright protection,anyone might freely copy the products of an author’s creative labor, appropriating the benefits without incurring the nonrepeatable costs of creation, thereby deterring authors from exerting themselves in the first place. On the other hand, copyright tends to restrict the dissemination (and use) of works once produced either because theabsence of competition translates directly into higher consumer prices or because the need to secure copyingpermission sometimes imposes administrative costs that make it difficult for potential users of a copyrighted workto find its owner and strike a bargain. See W. Landes & R. Posner, The Economic Structure of Intellectual Property Law 68–70, 213–214 (2003). Consequently, the original British copyright statute, the Constitution’s Framers, andour case law all have recognized copyright’s resultingand necessary call for balance. At the time the Framers wrote the Constitution, they were well aware of Britain’s 18th-century copyright statute, the Statute of Anne, 8 Anne, ch. 19 (1710), and theywere aware of the legal struggles that produced it. That statute sought in part to control, and to limit, preexisting monopolies that had emerged in the book trade as a result of the Crown’s having previously granted special privileges to royal favorites. The Crown, for example, had chartered the Stationers’ Company, permitting it to regulate and to censor works on the government’s behalf. The Stationers had thereby acquired control over the disposition of copies of published works, from which emergedthe Stationers’ copyright—a right conferred on company members, not authors, that was deemed to exist in perpetuity. See L. Patterson, Copyright in Historical Perspective 1–16, 114–150 (1968) (hereinafter Patterson); Walterscheid 59–65; Gómez-Arostegui, The Untold Story of theFirst Copyright Suit Under the Statute of Anne in 1710, 25 Berkeley Tech. L. J. 1247, 1250–1256 (2010).
Breyer also alludes to the views of James Madison and Thomas Jefferson with respect to patents, a point he raised last term in Stanford v. Roche.
At least, that was the predominant view expressed to,or by, the Founders. Patterson 93. Thomas Jefferson, for example, initially expressed great uncertainty as towhether the Constitution should authorize the grant of copyrights and patents at all, writing that “the benefit even of limited monopolies is too doubtful” to warrant anything other than their “suppression.” Letter from Thomas Jefferson to James Madison (July 31, 1788), in 13Papers of Thomas Jefferson 440, 443 (J. Boyd ed. 1956). James Madison also thought that “Monopolies . . . are justly classed among the greatest nu[i]sances in Government.” Letter from James Madison to Thomas JeffersonOct. 17, 1788), in 14 id., at 16, 21 (J. Boyd ed. 1958). But he argued that “in certain cases” such as copyright, monopolies should “be granted” (“with caution, and guarded with strictness agst abuse”) to serve as “compensation for a benefit actually gained to the community . . . which the owner might otherwise withhold from public use.” Monopolies. Perpetuities. Corporations. Ecclesiastical Endowments. in J. Madison, Writings 756 (J. Rakove ed.1999) (emphasis added). Jefferson eventually came to agree with Madison, supporting a limited conferral ofmonopoly rights but only “as an encouragement to men to pursue ideas which may produce utility.” Letter from Thomas Jefferson to Isaac McPherson (Aug. 13, 1813), in 6 Papers of Thomas Jefferson, at 379, 383 (J. Looney ed.2009) (emphasis added). This utilitarian view of copyrights and patents, embraced by Jefferson and Madison, stands in contrast to the “natural rights” view underlying much of continental European copyright law—a view that the Englishbooksellers promoted in an effort to limit their lossesfollowing the enactment of the Statute of Anne and that inpart motivated the enactment of some of the colonial statutes. Patterson 158–179, 183–192. Premised on the idea that an author or inventor has an inherent right tothe fruits of his labor, it mythically stems from a legendary 6th-century statement of King Diarmed “‘to every cow her calf, and accordingly to every book its copy.’ ” A. Birrell, Seven Lectures on the Law and History of Copyright in Books 42 (1899)
Adam Mossoff had some contrary thoughts.