Indirect Enforcement of the Intellectual Property Clause

" Indirect Enforcement of the Intellectual Property Clause ," 30 Colum. J.L. & Arts 565 (2007)

"Indirect Enforcement of the Intellectual Property Clause," 30 *Colum. J.L. & Arts* 565 (2007)

Christopher Jon Sprigman, Indirect Enforcement of the Intellectual Property Clause, 30 Colum. J.L. & Arts 565 (2007)

Twentieth Century Fox Film Corp. v. Entm't Distrib.

Oklahoma v. United States Civil Service Commission

Capitol Records, Inc. v. Naxos of America, Inc.

nonetheless makes some sense as a way of allocating institutional responsibility. Eldred is but the latest instance of the Court's broader commitment to allocating to Congress, in the case of economic regulations, principal responsibility to interpret and implement constitutional limitations on its legislative power. The rule is deference, the Eldred Court said, but that does not end the matter. We are left to ask what, if anything, is left for courts to do after Eldred in enforcing the Intellectual Property Clause limitations. If the answer is "nothing," then judicial deference differs little from judicial submission. We see an example of submission in the Supreme Court's political question doctrine, which is a rule declaring nonjusticiable certain disputes that are not subject to principled determination and are inherently political. 5 In the case of disputes that raise political questions, the courts are not instructed to defer. They are instructed to submit-i.e., to give up any responsibility for resolving the dispute in favor of action, or inaction, by the political branches of government. Is the Eldred Court's decision deference or submission? Justice Stevens, dissenting in Eldred, stated that the majority's opinion had effectively done the latter: "Fairly read, the Court has stated that Congress' actions under the Copyright/Patent Clause are, for all intents and purposes, judicially unreviewable. That result cannot be squared with the basic tenets of our constitutional structure." 6 Whether Eldred is, as Justice Stevens suggests, effectively a rule of nonreviewability depends in large part on what kind of deference courts understand the Eldred rule to require. That question remains to be resolved. My argument is that Dastar, decided less than five months after Eldred, suggests that deference does not equal submission. Dastar was not, at least on its face, a constitutional case. It involved, rather, a question of the interpretation of the federal trademark statute. Did the Lanham Act create a right of attribution in creative works, enforceable in perpetuity by the rightsholder? Justice Scalia, writing for a unanimous Court, said no. Interpreting the trademark statute to convey a perpetual right of attribution would, Justice Scalia wrote, create "a species of mutant copyright law that limits the public's federal right to copy and to use expired copyrights." The public'sfederal right to copy and to use expired copyrights. That "federal right" did not appear to inform the Court's holding in Eldred; in that decision, the 5. A dispute may involve a nonjusticiable political question, the Supreme Court held in Baker v. Carr, when the dispute implicates a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. See Baker v. Carr, 369 U. S. 186, 217 (1962) (equal protection claim based on state statute's alleged arbitrary apportionment of state legislature justiciable). 6. Eldred, 537 U.S. at 242 (Stevens, J., dissenting). 7. Dastar, 539 U.S. at 34 (internal quotations omitted). Court pushed off to Congress the task of determining the "limited" term consistent with the maintenance of a robust public domain. Cut off the flow of works into the public domain, and the public's "federal right to copy and to use expired copyrights" is deprived of substance. An obvious problem, but also, to the Eldred Court, not the Court's problem: "[I]t is generally for Congress, and not the courts," Justice Ginsburg wrote for the majority in Eldred, "to decide how best to pursue the [Intellectual Property] Clause's objectives." 8 Thus we see the Eldred Court disclaiming responsibility for the constitutionallymandated public domain. Congress is in charge of that subject, and the Court's role is to defer. And yet, one may readily understand the Court in Dastar as engaging in something that, at least at first glance, does not look particularly deferential. Although the reasoning underlying the Dastar decision is far from clear, the Court may reasonably be understood as engaging in the active interpretation (or perhaps misinterpretation) of a federal statute to avoid a collision with the same constitutional value-i.e., maintenance of the public domain-that it had refused to engage with in Eldred. How can these two decisions be reconciled? In trying to work through this question, I made progress only when I stopped thinking about Eldred and Dastar as incommensurable intellectual property cases and began instead to appreciate them principally as examples of the different ways that courts can allocate institutional responsibility for constitutional interpretation and enforcement. The difference between the two cases, it seems to me, is the difference between direct and indirect enforcement of the Constitution. What do I mean by this? Courts directly enforce the Intellectual Property Clause when they interpret some text in that provision, determine how it limits Congress' lawmaking power and then apply that limitation to judge the validity of some part of a copyright enactment. This is what the Court did in Eldred, albeit with very little constraining effect. Courts also enforce the Intellectual Property Clause directly when they use it to judge the validity of a claim of copyright infringement. This was done, for example, in Feist Publications, Inc. v. Rural Telephone Service Co.,9 where the Supreme Court, enforcing the Intellectual Property Clause requirement that copyright be limited to the "Writings" of "Authors," rejected an infringement claim for a factual compilation (in that case, a white pages telephone directory) that did not manifest the originality demanded by the constitutional grant.' 0 In contrast, courts indirectly enforce the Intellectual Property Clause when they use constitutional text--or perhaps more accurately their purposive understanding of constitutional text-as a guidepost in interpreting one of Congress' intellectual property enactments (e.g., the Copyright Act, the Patent Act, the Lanham Act), preferring interpretations that respect the court's understanding of the limits placed 8. Eldred, 537 U.S. at 212. 9. 499 U. S. 340 (1991). 10. Id. at 346, citing Trade-Mark Cases, 100 U.S. 82 (1879) and Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884). by the Constitution on legislation in this field over those that do not. I believe that Dastar can be understood as an example of indirect enforcement of the Intellectual Property Clause. The Dastar Court developed a positive conception of the public domain, and, derivatively, of what the "limited Times" provision requires. It did so, however, within the context of the interpretation of unclear statutory text. Accordingly, the Dastar Court's understanding of the implications of "[t]he public's federal right to copy and use expired copyrights" need not be adhered to as a constitutional ruling that binds the legislature. Rather, it is an ordinary ruling on the interpretation of a statute, subject to reversal or modification by Congress' ordinary lawmaking. The utility of the indirect enforcement methodology is not limited to understanding the Court's occasional forays into the narrow field of intellectual property. The indirect enforcement methodology is, I believe, a rational response to the concerns attending courts' direct enforcement of any part of the Constitution that, as in the case of the Intellectual Property Clause, presents difficult policy issues (e.g., how long can a copyright term be before it is no longer "limited") not readily susceptible to principled judicial line-drawing. In these instances, indirect enforcement lowers the risks inherent in judicial review: Unlike in the case of direct enforcement, in which courts make binding statements about the Constitution, indirect enforcement allows courts to make, in effect, constitutional proffers. Congress may, in its future lawmaking, accept such a proffer, accept it in part or reject it. Congress could reject a court's proffer by amending the relevant statutory language to make its intent clear. Rejection of the proffer would evidence a differing congressional understanding of its intellectual property power, one to which courts would then defer. Of course, use of the indirect methodology carries a cost. The methodology requires that courts adhere to a strong formalism in announcing whether their decisions are constitutional proffers or constitutional rulings. Is the Court speaking ex cathedra or in its alternative role as constitutional profferor? Telling the difference between the two involves real costs and uncertainties-not least the dissonance that would attend, at least for a time, judicial speech about the Constitution that is aimed to inform and persuade, but not to bind. On the other hand, the payoff is a system that implements judicial deference without judicial submission. Indirect application respects Congress' lawmaking primacy and its lead role in elucidating the boundaries of its power under the Intellectual Property Clause. But it preserves an important-albeit ultimately not decisive-role for courts in determining what those boundaries are. And most importantly, it allows both courts and Congress to do what they do well: courts to read and interpret constitutional text, and then announce (or, more precisely, to proffer) those interpretations in judicial decisions; Congress to legislate, based on its own understanding of its constitutional power, but reinforced by courts' contributions. We have grounds to hope that the outcome of this dialogue may, as a consequence of the differences between the legislative and adjudicatory process and the cultures of legislatures and courts, produce outcomes that are more fully theorized relative to what we would likely obtain from a one-way model of [30:3-4 deference, in which legislatures act and courts submit. It may seem strange, from within our Marbury-an 1 framework for judicial review, to think of the Supreme Court articulating constitutional interpretations that do not have authoritative effect, but the strangeness is more apparent than real. Under our traditional model of direct enforcement, it is Congress that makes constitutional proffers. 12 That is, Congress legislates according to its own understanding of what the Constitution permits or requires, with the expectation that the judiciary, and ultimately the Supreme Court, may disagree. The fact that Congress' understanding of the Constitution is subject to judicial override does not stop Congress from offering its view on what the Constitution means. Indeed, it could not do otherwise--Congress' views on the scope of its own legislative authority are built in to the laws it enacts. Seen in this light, indirect enforcement is nothing radical; it is merely a shift in institutional roles whereby Congress assumes ultimate authority (often subject, as in Eldred, to minimally-conceived judicial limits) and the courts become the profferors. Such a shift is a natural consequence whenever courts cede primary interpretive responsibility to Congress. Courts are in the business of deciding cases, and, in the ordinary course of that enterprise, litigants present claims and defenses that raise issues of statutory meaning. In interpreting statutes, courts sometimes find guidance in the Constitution. For example, courts construe statutes, where possible, to avoid potential collisions with the Constitution. Thus, it is inevitable that, in the enterprise of statutory interpretation, courts develop and apply their understandings of the Constitution. The question is whether courts' understandings must be adhered to as constitutional writ. Nothing in our constitutional order demands this. Our commitment to the idea that "[i]t is and Medical Leave Act, 112 YALE L. J. 1943 (2003); Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577 (1993); Abner Greene, Against Interpretive Obligation (To the Supreme Court), 75 FORDHAM L. REV. 1661 (2006). For views more friendly to judicial supremacy, and advocating a narrower role for constitutional interpretation outside courts, see, e.g., Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359 (1997); Larry Alexander & Lawrence B. Solum, Popular? Constitutionalism?, 118 HARV. L. REV. 1594 (2005) (reviewing LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004)). Developing the model of indirect enforcement would require a deeper understanding of how judges might participate in developing constitutional meaning where courts have ceded principal interpretive authority to Congress. The branch of scholarship referred to directly above, which explores non-judicial constitutional interpretation against the baseline of judicial claims to ultimate interpretive authority, may prove useful in understanding the judicial role where primary interpretive responsibility has been shifted to the legislature. emphatically the province and duty of the judicial department to say what the law is" 13 does not entail a consequent commitment to the judicial department as the only branch that says what the law--or the Constitution-is. I. JUDICIAL DEFERENCE VS. JUDICIAL SUBMISSION Article I, Section 8, Clause 8 of the Constitution empowers Congress to make laws "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." 14 This provision, which I refer to (in an anachronistic 15 and inaccurate 16 shorthand) as the Intellectual Property Clause, is, as the Supreme Court has recognized, "both a grant of power and a limitation." 17 More precisely, the clause grants two related powers (i.e., to make laws establishing federal patents and copyrights) and imposes several interlocking limitations on Congress' exercise of both. Copyrights may be granted only for the "Writings" of "Authors"limitations requiring, among other things, that copyrights be granted only for original works, and not for mere collections of facts. 18 Under the parallel limitations applying to patent, federal law may create patent rights only for the "Discoveries" of "Inventors." This text undergirds U.S. patent law's demanding novelty and non-obviousness requirements. Moreover, as a consequence of patent's constitutionally-specified purpose in promoting progress in "useful arts," patents may issue only for those discoveries that have a practical utility.' 9 And a parallel "constitutional command" 20 dictates "that Congress, to the extent it enacts copyright laws at all, create a 'system' that 'promote[s] the Progress of Science."' 2 1 Judicial decisions interpreting these limitations are few, and most of the Supreme Court decisions limning the Intellectual Property Clause focus on patent rather than copyright. 2 2 Of the Supreme Court's copyright decisions involving questions of Congress' constitutional power, until recently none involved a claim In Eldred the Supreme Court confronted another Intellectual Property Clause limitation-the one directing that patents and copyrights may be granted only for "limited Times." The events that led to Eldred began in 1998, when Congress passed and President Clinton signed the Sonny Bono Copyright Term Extension Act, or CTEA. 23 The product of intense lobbying by copyright owners, the CTEA added twenty years to the term of both subsisting and future copyrights. The Walt Disney Company thereby obtained an additional twenty-year period of exclusive control over the earliest works featuring Mickey Mouse, which would otherwise shortly have moved into the public domain. The owners of other valuable works then nearing the end of their copyright term, such as George Gershwin's Rhapsody in Blue and Maurice Ravel's Alborada del Gracioso, likewise gained an additional two decades of exclusive rights. In return, the public got very little. With respect to copyrights on works yet to be created, it can be argued, albeit faintly, that the CTEA reflected Congress' judgment of a proper quid pro quo-i.e., of the incentive requisite, in terms of the exclusive rights promised to would-be creators, optimally to induce the desired investment in creative labor. Such a judgment may have been wrongheaded, but still it is at least the type of judgment we recognize as relevant to rational copyright policymaking. With respect, however, to copyrights on works already in existence, and viewed from the utilitarian perspective that animates the Constitution's grant of power to Congress to create patent and copyright laws, the CTEA lacks even that public-regarding foundation. Works already created need no further incentive. Consequently, the CTEA's extension of the copyright term of subsisting works was a quid pro nihilo-i.e., a gift to owners of valuable copyrights in exchange for nothing and at the expense of the public domain that the copyright system is, by constitutional command, supposed to respect. 24 The Eldred petitioners, a collection of individuals and firms that distributed public domain works or used such works in their own derivative works, argued that Congress' extension of subsisting copyrights transgressed the "limited Times" 23. 17 U.S.C. § 302(a) (2000) (hereinafter CTEA). 24. Perhaps because most believe the constitutional battle over the CTEA to be over, few now bother seriously to dispute that, on balance, the extension of the already-lengthy copyright term was and is bad policy. Indeed, the head of the U.S. Copyright Office, Register of Copyrights Marybeth Peters, has publicly admitted as much. In a 2005 speech at an academic conference on intellectual property held at the University of North Carolina-Chapel Hill School of Law, see Mission, http://portal.northcarolina.edu/ipcip/mission.htm (last visited Feb. 6, 2007), Peters stated that "[w]e've certainly lengthened the term [of copyright] perhaps-I won't even say perhaps-too long a term. I think it is too long. I think that was probably a big mistake, but one that Congress can make." Boing Boing, Copyright office head denounces "big mistake" of extending copyright, http://www.boingboing.net/2006/02/21/copyright-officehea.htm (Feb. 21, 2001). restriction. 25 The limited time that applies to a particular copyrighted work, petitioners claimed, is established at the time that work enters the copyright system; any alteration of the time, once fixed, renders the term no longer "limited. 26 This is not a particularly compelling argument, either textually (the conclusion that "limited" = "fixed" is not suggested either by the definition of the word "limited" or by any evidence that the Framers understood the term that way in the context of copyrights and patent), or as a matter of intellectual property policy (why should an otherwise very short copyright term-one of, say, ten years-be impermissible simply by virtue of the fact that the work the term applied to originally was protected by a shorter term?). Moreover, petitioners' reading of "limited" conflicts with the Supreme Court's understanding of Congress' historical practice. The Eldred Court noted and relied heavily on the fact that Congress has extended subsisting terms every time it lengthened the copyright term prospectively. 27 Quoting Justice Holmes on the relative merits of pages of history and volumes of logic, 28 the Court deferred to Congress' own apparent construction of its power. The Court's deferential approach in Eldred to judging the validity of Congress' copyright lawmaking is hardly an outlier. Indeed, the Court's posture in Eldred is consistent with the current state of its Commerce Clause 30 and Taxing and Spending Clause 31 jurisprudence: a high degree of deference, subject only to judicial enforcement at the limits. 32 And in each of these cases, it is in some sense the constitutional language itself that triggers the Court's resort to deference. In the case of both the Commerce 33 and Taxing and Spending 34 Clauses, judicial 25. See id. at 200 ("History reveals an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime."). Id. (quoting N.Y. Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) ("[A] page of history is worth a volume of logic.")). 29. Although the definitional theory equating "limited" with "fixed" is weak, one can hardly blame the Eldred petitioners for advancing it. The alternative-asking the Court to establish the boundary beyond which a term was too long to be "limited"-was even less attractive, as it explicitly raised a policy question not susceptible to principled judicial determination. Hence the rare point on which petitioners and the Court agreed: "Whether 50 years is enough, or 70 years too much ... is not a judgment meant for this Court." Eldred, 537 U.S. at 193 (quoting Brief for Petitioners at 14). See, e.g., Gonzales v. Raich, 545 U.S. 1 (2005) (upholding federal law prohibiting cultivation and possession of small amounts of marijuana for medicinal purposes based on "cumulative" effect of medical marijuana on interstate commerce). See, e.g., United States v. Kahriger, 345 U.S. 22, 31 (1953) (upholding federal tax on bookmakers: "Unless there are provisions extraneous to any tax need, courts are without authority to limit the exercise of the taxing power."); South Dakota v. Dole, 483 U. S. 203 (1987) [30:3-4 deference is a response, at least in part, to courts' inability to draw principled lines to determine what is or is not commerce, a tax or an expenditure. These constitutional provisions grant legislative power and impose restraints, but the restraints are not set out in a way that facilitates judicial enforcement. The same is true in the case of the Intellectual Property Clause-the "limited Times" constraint does not itself announce what the boundary line is between a limited term and an unlimited one, and, as we shall see shortly, the Eldred Court's identification of "limited" with "non-perpetual" cannot be the full answer. And yet, although deference is for this reason expedient, it also imposes a cost. In the case of Congress' exercise of its Commerce and Taxing and Spending powers, judicial deference removes one possible avenue for resolving the core federalism concerns that attend the powers. 35 In contrast, in the Intellectual Property Clause context, federalism concerns are attenuated. 36 That does not, however, mean that we can accept without worry judicial deference to Congress' exercise of its intellectual property power, for two concerns of perhaps equal weight to federalism attend Congress' lawmaking in the copyright area. The first is the structural principle of enumeration. Our legislature is not one of plenary powers, and the congressional power to enact patents and copyrights is fenced in by a more than ordinary number of limitations, including one, unique among the Article I powers, directing that Congress' copyright and patent lawmaking power be used only for public-regarding purposes. In the context of a copyright lawmaking process that plausibly has been described as a rent-seeking bazaar favoring the property interests of organized intellectual property producers over the 34. U.S. CONST., art. 1, § 8, cl. I ("The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States."). See, e.g., Gonzales, 545 U.S. at I (upholding federal anti-medical marijuana law in spite of conflict with state law legalizing medical marijuana); Oklahoma v. United States Civil Service Commission, 330 U.S. 127 (1947) (upholding provision of federal law granting federal funds to state governments on condition that recipient states adopt civil service employment systems and limit political activities of a broad category of state government employees). 36. From its first copyright enactment in 1790, Congress has aggressively preempted state copyright laws, as they applied to published works. The current federal Copyright Act includes moreover, a provision effecting explicit statutory preemption of all state laws that grant "legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright .. " 17 U.S.C. § 301(a) (2000). In its 1976 revision of copyright law, Congress set a timetable for finishing job of preempting state copyright law. A process of terminating longstanding and often perpetual state rights in unpublished works began in 2003; eventually all unpublished works will move out of state protection and into the public domain. See 17 U.S.C. § 303(a). For a summary of the effect of this provision, see generally Elizabeth Townsend Gard, January 1, 2003: The Birth of the Unpublished Public Domain and its International Implications, 24 CARDOZO ARTS & ENT. L. J. 687 (2006). A similar process will commence in 2067 for pre-1972 sound recordings, see 17 U.S.C. § 301(c) (2000), which are unprotected under federal copyright law, but which have long been subject, at least in certain states, to perpetual common law protection. See Capitol Records, Inc. v. Naxos of America, Inc., 830 N.E.2d 250 (N.Y. 2005) (pre-1972 sound recordings subject to perpetual New York common law copyright; rights subject to termination by operation of federal copyright law beginning in 2067). access interests shared by the broader public, 37 judicial deference may come at the expense of the enumeration principle. The source of the second overarching concern is, of course, the First Amendment. Copyright is a form of economic regulation, but it is also a regulation of speech. And while it is at least arguably true, as the Court noted in Eldred, that First Amendment concerns "bear[ ] less heavily when speakers assert the right to make other people's speeches," 38 it is also true that many copyright disputes involve much more than simple reproduction of "other people's speeches." Every creation of a derivative work, for example, involves one's own speech as well as another person's. The Court's epigram about "other people's speeches" is an oversimplification. It is also at odds with the Court's broader free speech jurisprudence. Outside of the copyright context, the Court has never articulated a First Amendment theory that downgrades speech that is not purely the author's own. Thus, the Eldred Court's deference is in tension with significant structural (enumeration) and substantive (free speech) concerns that push in favor of judicial policing of Congress' copyright lawmaking. My brief here is not to criticize the Eldred Court's deference, nor would I suggest that the Court should have accepted petitioners' "limited Times" theory. My concern is rather with the strange and rigid approach the Court took to reach its result, and what that approach tells us about the limits of the judicial role in enforcing constitutional limitations on Congress' power. Justice Ginsburg, in her opinion for the majority in Eldred, made no inquiry into the purpose animating the "limited Times" language and no attempt to develop a purposive theory of that limitation. Instead, she consulted an eighteenth-century dictionary to divine the meaning of "limited." The meaning of that word, said the Court, does not require that a copyright term, once set, be fixed or unalterable. 39 Rather, a term is "limited," both as the Framers understood the meaning of the term and now, so long as it is .'confine [d] within certain bounds,' 'restrain[ed],' or 'circumscribe [d].' 40 Any finite term, in other words, is a "limited" term. Let us assume for the moment that Justice Ginsburg's dictionary-mongering is meant to be taken seriously as an interpretation of what "limited Times" actually means, rather than as just a quickly tossed-off "limited = finite" riposte to petitioners' weak "limited = fixed" argument. If we take the Court's reading at face value, a one-thousand-year copyright term is a constitutionally valid "limited" term. And so, too, is a million-year term, a billion-year term or indeed any finite term. Such a reading is logically straightforward, produces easy answers and is palpably absurd. If-again, if-we are to treat Justice Ginsburg's ruling as a 37. See, e.g., Robert Merges, One Hundred Years of Solicitude: Intellectual Property Law 1900-2000, 88 CAL. L. REV. 2187, 2190-91 (2000) [30:3-4 binding interpretation of constitutional text, the Court has just announced that the Constitution charges the judiciary with the fool's mission of policing the imaginary boundary between finity and eternity. Why a fool's mission? The Supreme Court has repeatedly made clear that the "limited Times" provision exists to ensure that Congress' patent and copyright lawmaking create and respect a public domain-i.e., a stock of writings and inventions free of the restraints of copyright and patent law and available for public use. But what kind of public domain? The age of the works that move into it is certainly relevant-a fact apprehended most easily in the context of patent. Many technologies have an effective economic life shorter than the current (twenty-year) patent term. An example would be an innovation in microprocessor architectures, which might be superseded by a next generation of technical developments within a few years. By the time such an invention enters the public domain, its value is seriously, perhaps wholly, depleted. We are all free to use it, but we are unlikely to have any desire to do so. For the public domain in inventions to have any commercial value, things must move into it that, unlike my example directly above, we want to use. And we know that, in fact, some very valuable patented inventions do move into the public domain. We see, for example, patents expiring or about to expire on several blockbuster drugs. A recent example is Merck's cholesterol-lowering "statin" drug Zocor, for which patent rights expired in 2006.41 Although pharmaceutical companies have invested significant sums in the hope of discovering new and better (and newly-patentable) drugs to replace older ones such as Zocor, it is the case today that older statins are widely prescribed and are likely to remain so for some time. Thus, when a drug like Zocor moves into the public domain, we understand that the lower prices realized from generic competition are a benefit of the relatively short patent term. A similar process occurs in the case of copyrighted works-albeit the copyright term is, of course, now more than four times as long as the term granted by patent. As in the case of patented inventions, the passage of time erodes the commercial value of copyrighted creative works. Copyright Office data on renewal rates (collected back when the pre-1976 copyright law imposed a renewal formality as a condition on enjoyment of the full term of protection) show that few works-about 15% overall-remain valuable enough after a 28-year period to merit the very modest investment in time and fees required to perfect a renewal. 42 William Landes and Richard Posner have used this data, as well as less comprehensive Copyright Office data on registrations, to calculate a depreciation rate for copyrighted works of between 5.4% and 12.2% per annum, which works out to an average expected commercial life for registered works ranging from 8.2 to 18.5 years. 43 commercial life-indeed, the average published work has a commercial life that is somewhere around 10% as long as the current copyright term. (And it is important to note that the Copyright Office data do not tell us about the huge number of works that never had any commercial value and were thus never registered or renewed under the pre-1976 law. As a result of the removal of formalities from the copyright system, all of these works are now subject to the full term of federal copyright. 44 ) This mismatch between the short economic life of most copyrighted works and the very long copyright term means that most works enter the public domain only after their commercial value is entirely depleted. Whether this is a problem or not is unclear. We do not yet have a theory that tells us whether the purpose of the "limited Times" constraint is, in part, to ensure that the average work (or, indeed, any work) falls into the public domain with some element of its commercial appeal remaining for others to exploit. There are economic justifications for such a view, articulated in the work of Brett Frischmann 4 5 and others, which arise from the positive externalities created by the spreading of "infrastructural" ideas. There is, however, much work yet to be done to develop a theory that identifies as a constitutional value some constraint on appropriability of economic rents by the original rightsholder. That said, a copyrighted work's commercial value is not the sum total of its "value." Copyrighted works can make money, but they can also make political and cultural conversations. That is, copyrighted works are speech, and speech has a separate political/cultural value that is the subject of the First Amendment's solicitude. And a work's political/cultural value, like its commercial value, usually erodes over time. Consider, for example, the fourteenth-century love poem To Rosemounde, from the father of English literature, Geoffrey Chaucer: Ma dame, ye ben of al beaute shryne As fer as cercled is the mapamonde; For as the cristall glorious ye shyne, And lyke ruby ben your chekys rounde. Therwyth ye ben so mery and so iocunde That at a reuell whan that I se you dance, It is an oynement vnto my wounde, Thoght ye to me ne do no daliance. For thogh I wepe of teres ful a tyne, Yet may that wo myn herte nat confounde; Your semy voys that ye so small out twyne Makyth my thoght in ioy and blys habounde. PROPERTY LAW 238-40 (2003). We are still close enough to Chaucer to recognize that he is heartsick over an unrequited love. But to understand just how bad it is takes some work. What does it mean to "wepe of teres ful a tyne?" Apparently to cry long and hard enough to fill the type of tub once commonly used to hold fish. 47 This may have been a powerful image in the fourteenth century, but if men were ever likely to fill tubs with tears shed yearning for women with whom apparently they have not even flirted ("Thoght ye to me ne do no daliance"), they are no longer seen to do so. The point here is not limited to the difficulties we experience penetrating Chaucer's Middle English. We are also held at a distance from Chaucer's work because we are increasingly distant from his culture, and from the set of images about romantic love and longing that resonated in that culture. The relevance of his work to our current conversations about love, or indeed any of the myriad other topics on which Chaucer's writing touches, is not exhausted, but it is nonetheless limited. Chaucer is thus, for most of us, a historical figure rather than a current interlocutor. Perhaps Chaucer's work is so great, and its reputation so secure, that it will never be entirely senescent. But for works of less merit than Chaucer's, political/cultural value may, like commercial value, erode, perhaps ultimately to zero. The upshot, of course, is that the length of the copyright term is a critical element in determining whether the public domain in artistic and literary works is of much use to us. A public domain that contains a large number of relatively recent works serves its purpose as a repository from which present-day creators may draw to continue and enrich the cultural and political conversation. In contrast, a "public domain" that contains only very old works-the vast majority of which will possess neither commercial nor cultural value by the time they emerge from copyright-is a less valuable resource. For these reasons, the Court's opinion in Eldred is troubling if we believe that the "limited Times" text was placed in the Constitution not just as an injunction against mathematically perpetual copyright, but as a means of ensuring that Congress' copyright lawmaking maintain a practically useful public domain. The text is tied to a purpose, and that purpose is frustrated as surely by a thousand-year copyright term-and perhaps even by the current copyright term (which is effectively a century long)-as by a perpetual one. The latter deposits nothing into the public domain. The former deposits mostly useless husks-works whose commercial and cultural value has been depleted by the passage of time. It is, of course, unclear exactly where the constitutional boundary lies. That is the question a court should raise in interpreting the "limited Times" requirement. In the view of the Eldred Court, however, it was precisely the question to avoid. 4 8 Of course, we cannot say whether Eldred provides the final word on "limited Times." It is always possible that one day-probably a day shortly before Mickey Mouse is set again to enter the public domain-the Court will be confronted with yet another extension of the copyright term. And on that day the Court might leave the dictionary on the shelf, articulate a more purpose-driven theory of what "limited Times" means, and apply that theory to assess the constitutionality of the extension. But for the moment, all we have is Eldred's minimalist conception of what the limitation requires, and that conception clearly cannot fully enforce the limitation. Where does that leave us? For an answer to that question, we turn, somewhat oddly, to a trademark case, Dastar Corp. v. Twentieth Century Fox Film Corp. 49 The Supreme Court's opinion in Dastar may appear at first blush to decide a pedestrian case involving interpretation of the text of the Lanham Act. Yet, although the case is primarily about interpretation of a highly technical provision of the trademark law, commentators have begun to notice that it is nonetheless far from pedestrian. Tom Bell has written about Dastar's potentially revolutionary effect on copyright preemption analysis. 50 Jane Ginsburg has written about Dastar's hostility to an author's right, well established in the copyright laws of most nations and in the international copyright agreements to which the United 48. Again, there is a debate over the degree to which copyright inhibits speech. Many have noted that because of internal limiting doctrines such as the idea/expression distinction and the fair use defense, the property rights granted by copyright law are inherently "leaky." See R. Polk Wagner, Information Wants to Be Free: Intellectual Property and the Mythologies of Control, 103 COLUM. L. REV. 995 (2003). In a recent article, however, Jim Gibson describes a dynamic that pushes in the opposite direction, noting that risk aversion and consequent over-licensing result in ever-expanding copyright claims. James Gibson, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 YALE L. J. (forthcoming 2007) (on file with author). I do not mean to enter into this debate here, but simply to point out that in Eldred's wake, courts' decisions limning the contours of copyright doctrine will do more work in vindicating a purposive understanding of the "limited Times" constraint than anything courts are likely to do, at least for now, in terms of enforcing the Constitution directly. 49. 539 U.S. 23 (2003). States is a party, to claim authorship in her works. 5 1 I want to focus on what may ultimately be the most important aspect of Dastar-the decision's strong signal that courts retain a significant role post-Eldred in enforcing limitations on the Congress' intellectual property power. Dastar involved a twenty-six-episode television series, Crusade in Europe, documenting the allied campaign against the Germans in World War II. Crusade was based on a book of the same title by General Dwight Eisenhower. Eisenhower's publisher, Doubleday, held the copyright in the Crusade book. In 1948 Doubleday and Twentieth Century Fox Film Corporation ("Fox") reached an agreement granting to Fox the exclusive right to produce a television series based on the book. Fox contracted with Time, Inc. to produce the Crusade television series, and Time subsequently assigned its copyright in the series to Fox. The Crusade television series was first broadcast in 1949. In 1975, Doubleday renewed its copyright in the Crusade book. Fox failed, however, to renew its copyright on the Crusade television series, and that work therefore moved into the public domain upon the expiration in 1977 of the initial copyright term. 52 In 1988, Fox reacquired the television rights in General Eisenhower's original book, and licensed SFM Entertainment and New Line Home Video, Inc. to distribute Fox's Crusade television series on videocassette and to sublicense others to do so. 53 In furtherance of this arrangement, SFM obtained negatives of the original Crusade television series, restored them, and produced a re-packaged videotape set, which New Line distributed. In 1995, Dastar, anticipating an upsurge in interest in WWII history on the fiftieth anniversary of the end of the war, decided to compete with Fox and its licensees in the distribution of Crusade. Dastar purchased copies of the original version of the Crusade series-which, remember, was in the public domaincopied them, and then re-edited the material to produce a video program it entitled World War II Campaigns in Europe ("Campaigns"). Dastar's Campaigns was slightly more than half the length of the original Crusade series, and it differed from Crusade in other ways as well: Dastar inserted its own opening sequence, credit page, and final closing in place of those in the Crusade series; it inserted new chapter-title sequences and narrated chapter introductions; it moved the Crusade series' "recap" to the beginning of the Campaigns program and retitled it as a "preview"; it removed references to and images of the original Eisenhower book; and it created new packaging for the videocassettes. 54 Dastar then sold the Campaigns video series as its own product, stating both in its advertising and in the credit sequences in the video itself that the series was produced by Dastar, and making no mention of the original Crusade series, the revised Crusade series distributed by New Line, or the Eisenhower book. Dastar were marketed widely, at a price considerably lower than New Line's revised Crusade video set. 55 In 1998, Fox and its allies filed suit, alleging first that Dastar's Campaigns video set infringed Doubleday's copyright in the Eisenhower book (Fox claimed a right to sue to enforce Doubleday's copyright as the exclusive licensee of video rights in the copyrighted book). 56 Fox later amended its complaint to add trademark claims-specifically, that Dastar's sale of Campaigns "without proper credit" to the Crusade television series constituted "reverse passing off' in violation of § 43(a) of the Lanham Act. 57 A producer who misrepresents his own goods or services as someone else's is said to be engaged in "passing off' in violation of the Lanham Act. "Reverse passing off," conversely, occurs when a producer misrepresents someone else's goods or services as his own. 58 On cross-motions for summary judgment, the district court ruled in favor of Fox on all of its claims and awarded double Dastar's profits to Fox under a special damages provision in the Lanham Act. 59 The Ninth Circuit reversed and remanded on the copyright claim, but affirmed on the Lanham Act claim, stating that "Dastar copied substantially the entire Crusade in Europe series created by Twentieth Century Fox, labeled the resulting product with a different name and marketed it without attribution to Fox[, and] therefore committed a 'bodily appropriation' of Fox's series." 60 This "bodily appropriation" was sufficient, the Ninth Circuit held, to constitute an actionable instance of reverse passing off. 61 The Supreme Court granted certiorari and reversed, rejecting an interpretation of the Lanham Act that would penalize the distribution of a public domain work without attribution to the original author. It will profit us to look at the relevant statutory text. Section 43(a) of the Lanham Act provides, in pertinent part, that: Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce ... any false designation of origin, false or misleading description of fact, or false or misleading representation of which, whichis likely to cause confusion, or to cause mistake, or to deceive ... as to the origin... of his or her goods, services, or commercial activities .... shall be liable in a civil action by any person who believes that he or she is or is likely 60. Twentieth Century Fox Film Corp. v. Entm't Distrib., 34 Fed. Appx. 312, 314 (9th Cir. 2002). With respect to the copyright claim, the Ninth Circuit held that the evidence created a triable issue whether the copyright in Eisenhower's book was originally held by the author, or by Doubleday as the copyright on a work made for hire. If the latter, then an issue would arise regarding whether Doubleday properly renewed the copyright in 1976, and, if not, whether the book was in the public domain. Id. at 314. [30:3-4 to be damaged by such act. 62 Fox claimed that Dastar, in marketing Campaigns as its own product without acknowledging its reliance on the Crusade television series, violated § 43(a)(1)(A) by making a false designation of origin, false or misleading description of fact, or false or misleading representation of fact likely to cause confusion as to the origin of the Campaigns video. This claim, said the Court, presented a statutory construction problem-how to understand the meaning of the terms "origin" and "goods": If "origin" refers only to the manufacturer or producer of the physical "goods" that are made available to the public (in this case the videotapes), Dastar was the origin. If, however, "origin" includes the creator of the underlying work that Dastar copied, then someone else (perhaps Fox) was the origin of Dastar's product. At bottom, we must decide what § 43(a)(1)(A) of the Lanham Act means by the "origin" of "goods." 63 Justice Scalia began his opinion in Dastar as Justice Ginsburg had in Eldredwith a dictionary definition. The meaning of "origin" was, Justice Scalia found, unproblematic-that term denotes "[t]he fact or process of coming into being from a source." 64 It was, in Justice Scalia's view, the dictionary definition of "goods"i.e., "[w]ares; merchandise"-that provided some interpretive purchase. 65 The "most natural understanding of the 'origin' of 'goods,"' Justice Scalia concluded, "is the producer of the tangible product sold in the marketplace, in this case the physical Campaigns videotape sold by Dastar." 66 Put plainly, Dastar holds that Lanham Act protections against misrepresentations as to origin are limited to the plastic videocassettes, rather than the Campaigns documentary program, because only the plastic bit qualifies as "goods" under the statute. That is a bizarre reading of the term "goods," and one that suggests an even more questionable understanding of the intent animating the Lanham Act. The statute's prohibition of passing off and reverse passing off seeks to ensure that consumers receive truthful information about who produces the products and services they buy. Accurate information about origin is obviously important to effective economic competition, which depends on consumers' ability to link both good and bad products and services with their actual producers. And what is the relevant information for the consumer of a Dastar video? Consumers who purchase the Campaigns video likely don't care about the "origin" of the cassettes on which the documentary program is recorded. To the extent that they care at all about the "origin" of the "goods" they've just purchased, the "good[ ]" they care about is the documentary program. Justice Scalia admitted as much: is [perhaps] ... different for what might be called a communicative product--one that is valued not primarily for its physical qualities ... but for the intellectual content that it conveys, such as a book or, as here, a video. The purchaser of a novel is interested not merely, if at all, in the identity of the producer of the physical tome (the publisher), but also, and indeed primarily, in the identity of the creator of the story it conveys (the author). 67 So why avoid, in the case of "communicative products," the common-sense reading of the statute-i.e., the one that would protect consumers' interest in accurate information regarding the origin of the particular "goods" they actually care about? Justice Scalia insisted that his favored interpretation was the one that fit best with the statutory language, but that argument is a make-weight for which Scalia offered no supporting argument. While the definition of "goods" may at one time have been freighted with some notion of physicality, that day is long past. Take the example of software. Software once was distributed primarily on floppy disks and then on CDs; it is distributed increasingly often now as a naked digital file-i.e., as a download. Does this mean that software is not a "good" under the Lanham Act? No, and the presence or absence of a physical disk has nothing to do with it. Goods are "wares," software is a ware, software is a good, and software is also a communicative good (i.e., it is valued primarily for the intellectual contentin the case of software, processes, algorithms, screen displays, etc.-that it conveys). The "good" that consumers buy, when they buy software, is actually a bundle of things. The bundle sometimes includes a medium, but this is typically trivial, comprising only the barest fraction of the cost of the good and having no independent competitive significance (and consequently little significance to consumers). The typical software bundle contains two much more important elements. First, the ones and zeros that comprise the digital object code of the software program in question. The executable code is the part of the "good" that actually performs the functions a computer user is paying to perform. Second, the bundle contains a set of legal rights: typically, an end-user license that permits certain uses and imposes certain restrictions on use. Under the Dastar Court's artificially-straightened definition of "goods," consumers once could rely on the Lanham Act to ensure that software manufacturers did not mislead them about the source of the five-cent plastic disk on which a $500 copy of Microsoft Office is distributed. Now that the disk is gone, they are entirely on their own. This result is clearly at odds with the purpose of the Lanham Act's prohibition of passing off. And it is also at odds with the Lanham Act's text. So why would the Court stretch so far to push copyrighted works outside the Lanham Act's passing off prohibition? The real impetus for limiting the reach of the Lanham Act, Justice Scalia's opinion makes clear, is driven by a concern that has nothing to do with statutory text: "The problem with this argument according special treatment to communicative products is that it causes the Lanham Act to conflict with the law of 67. Id. at 33. [30:3-4 copyright, which addresses that subject specifically." 68 This quote raises several tough questions. First, what is the "special treatment" of communicative products? There seems to be none-the Dastar respondents asked only that the Court treat communicative products as products, or, in the statute's argot, as "goods." It is the refusal to do so, which the Dastar petitioners favored, that constitutes "special treatment to communicative products." A second question, then: What is the potential conflict between copyright and patent? On this point Justice Scalia is entirely clear-the conflict is between an interpretation of the Lanham Act that creates a cause of action for misleading statements of attribution, and the copyright law, which creates a very narrow right of attribution confined mostly to expensive works of fine art. 6 9 Under the latter form of regulation, and for the vast majority of works not addressed by copyright's narrow right of attribution, said Justice Scalia, "[t]he right to copy, and to copy without attribution, once a copyright has expired, like 'the right to make [an article whose patent has expired] ... passes to the public."' 70 "The rights of a patentee or copyright holder," he continued, "are part of a 'carefully crafted bargain,' under which, once the patent or copyright monopoly has expired, the public may use the invention or work at will and without attribution." 71 Having identified the potential conflict between copyright and trademark, Justice Scalia counseled that interpretations of the Lanham Act that led to conflict should be avoided: Assuming for the sake of argument that Dastar's representation of itself as the "Producer" of its videos amounted to a representation that it originated the creative work conveyed by the videos, allowing a cause of action under [the Lanham Act] for that representation would create a species of mutant copyright law that limits the public's "federal right to 'copy and to use expired copyrights.12 The public's federal right to copy and to use expired copyrights. Wheredoesthis right come from? Not from the copyright statute. It sets a term of copyright, but has nothing directly to say about what rights the public enjoys in copyrighted works once the term has expired. The copyright statute does, of course, approach this question indirectly via its preemption provision. 73 State laws that create rights equivalent to those created by the federal statute are preempted to the extent they extend those rights to works that are within the subject matter addressed by federal copyright. But the federal copyright statute does not purport to preempt state laws that burden public domain works-even if the burdens are quite significant-if those laws do not create rights equivalent to those set out in the federal copyright 68. Id. 69. See Visual Artists Rights Act of 1990, 17 U.S.C. § 106A (2000). 70. Dastar, 539 U.S. at 33 (citing Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 230 (1964); Kellogg Co. v. Nat'l Biscuit Co., 305 U.S. 111 (1938) § 301 (2000). statute. State unfair competition laws, for example, largely survive copyright preemption analysis, as do state right of publicity laws (at least prior to Dastar). 74 And, of course, the federal copyright preemption provision has nothing to say about other federal laws that grant copyright-like rights. So the "federal right to copy and to use" expired copyrights, which Justice Scalia refers to, cannot come wholly from the statute itself. To the extent that the federal right runs at all against other federal enactments, such as the Lanham Act, it must come from somewhere else. I can think of two immediate possibilities. First, that Justice Scalia's purposive interpretation of the Lanham Act is informed not by the text of the Copyright Act, but from his distillation of a conception of the public domain as a principle of the common law of copyright-by which I mean the overarching understandings of the history and nature of federal copyright that inform interpretation of the copyright statute but are not contained in it. Second, that Dastar's purposive interpretation of the Lanham Act was driven by constitutional principles-specifically, a conception of the public domain that issues from the Intellectual Property Clause injunction directing that the federal copyright be for "limited Times." The opinion in Dastar does not tell us which to choose, so we cannot say anything definitively. Nonetheless, the second possibility seems to me more likely, for two principal reasons: First, the Court in Dastar is not interpreting the Copyright Act, which leaves us to ask why Justice Scalia would be engaged in the development of a common law copyright principle. What effect, one might ask, could such a principle have on the law of trademark? The Copyright Act's own preemption provision does not purport to reach other federal statutes, and Justice Scalia's opinion in Dastar is not phrased in terms of either express or implied preemption. Second, even if Dastar reflects only the development and implementation of a copyright common law principle, the question simply moves back a level-where does the common law principle come from? it cannot be our history of federal copyright, for federal copyright has never been construed to broadly preempt noncopyright burdens on public domain works. Such broad preemption would be a break with the previous conception of the "public domain" implied by the narrow reach of pre-Dastar federal preemption analysis. At the core of Dastar is a mystery, but the opinion does drop some clues, and they lead us toward the Constitution. We cannot yet know Dastar's precise implications, but it is clear at least that the decision's portents for courts' post-Eldred enforcement of the Intellectual Property Clause have been given insufficient attention. At a minimum, Dastar suggests that non-copyright statutes such as the Lanham Act should be interpreted, where possible, in a way that avoids burdening access to works in the public domain. And 74. See Bell, Misunderestimating Dastar, supra note 50 (arguing that Dastar dramatically expands the scope of copyright preemption). if ambiguities in non-copyright statutes are subject to this constitution-regarding maxim of statutory interpretation, what about the ambiguities in the copyright laws themselves? Dastar can be read as externalizing an Intellectual Property Clause limitation onto congressional lawmaking outside the intellectual property power. In some sense the externalization was soft-the Dastar Court used "limited Times" to inform its interpretation of the statute, rather than to strike it down. But the very softness of the Court's use of "limited Times" is part of its significance. Unwilling only five months earlier to enforce "limited Times" directly on a statute enacted within the very power subject to that restraint, the Court was willing and even eager to enforce the same restraint indirectly on a statute enacted under a wholly different Article I power-i.e., the commerce power-that lacks any internai limitation similar to "limited Times." We should pause here a moment to note that Dastar cannot comfortably be redued to another example of the well-established practice whereby courts construe statutes to avoid constitutional doubt. Again, Congress did not pass the Lanham Act under its Intellectual Property Clause power, but under its Commerce Clause power, which contains no limitation analogous to "limited Times." Accordingly, the "limited Times" constraint, internal to the intellectual property power, does not, at least at first glance, appear to create constitutional "doubt" in the sense usually present when a particular construction of a statute is likely to lead to its invalidation. To maintain otherwise, one must believe that, had the Dastar Court read the Lanham Act to impose a perpetual right of attribution for communicative works, the statute would have been struck down, and that result is exceedingly unlikely. The Supreme Court held in the Trade-Mark Cases that Congress could not create a federal system of trademarks under its Intellectual Property Clause power. Trademarks, the Court said, were a subject matter separate from the patents and copyrights treated under the Intellectual Property Clause. 75 In particular, trademark law grants rights that are distinct from the rights traditionally granted via copyright law, and the schemes have different purposes. Unlike copyright, trademark law is not aimed at the protection of authorship and incentives to engage in creative labor; it has "no necessary relation to invention or discovery." 7 6 Rather, trademark functions to help consumers identify the origin of goods-both indirectly by protecting firms' association of marks and trade dress elements with their goods and services, and also directly by prohibiting false and misleading statements with respect to origin. Consequently, a trademark does not depend for its validity "upon novelty, invention, discovery, or any work of the brain. It requires no fancy or imagination, no genius, no laborious thought. It is simply founded on priority of appropriation. " 77 For these reasons, Congress' power to enact trademark legislation could not be located, the Court held, "in the constitutional provision concerning authors and inventors, and their writings and discoveries. "78 Nor could the power to enact the particular trademark statute at issue in the Trade-Mark Cases be located within the Commerce Clause-nothing in the then-existent federal trademark statute limited its coverage to marks used in interstate commerce, 79 and given the narrow scope accorded by courts to the commerce power at the time, that omission was fatal. The Trade-Mark Cases tell us that Congress cannot enact trademark laws pursuant to the intellectual property power. But of course, since the Supreme Court invalidated Congress' first trademark law, Congress has successfully enacted the Lanham Act under its commerce power. Consistent with the internal limitations of the Commerce Clause, the Lanham Act reaches only trademarks used in interstate commerce. Because, however, trademark rights are created outside the intellectual property power, the federal rights created under the Lanham Act are perpetual. The Trade-Mark Cases hold that trademark and copyright/patent exist in separate spheres; on this basis, Congress sensibly legislated as if the limitations internal to the intellectual property power-including "limited Times"-did not apply to its trademark scheme. So again, why would the Dastar Court shape its interpretation of the Lanham Act to avoid creating a "species of mutant copyright law?" As we have just seen, not because the "limited Times" constraint applies directly to limit Congress' power to enact trademark laws. Dastar is more significant, and its use of the Constitution much more interesting. The Constitution does not demand that Congress' trademark enactments respect the "limited Times" constraint. And yet "limited Times" exerts a constraint nonetheless-the text radiates, in effect, from the Intellectual Property Clause to affect the Court's construction of Congress' exercise of an adjacent, but separate power. The radiation is not one of binding text; it is rather of a purpose-the establishment and maintenance of a public domain in communicative works-that the Dastar Court was at pains to promote. And the effect of the radiation is not to limit the term of trademarks (that would be the effect that we would anticipate from direct enforcement of the constraint), but rather to ensure that trademark law does not unduly limit the freedoms that, in the Supreme Court's view, define the public domain. Again, this is not a definitive reading of Dastar; that opinion does not admit certainty in its interpretation. But it is at least a plausible reading-and by my lights, for reasons explained above, a more than plausible reading. And if this is what the Court has done, it is an astonishing result. The Dastar Court has, in effect, identified the public domain as core constitutional policy, and has promoted that policy via public domain-friendly interpretation of a non-copyright statute. This raises three immediate questions: First, can we take Dastar seriously? I ask this not least because the Dastar Court's aggressive use of the "limited Times" constraint as a guide to statutory interpretation is especially jarring, given the Court's refusal, just months before in 78. Id. 79. Id. [30:3-4 Eldred, to accord the same constitutional text anything but minimal direct constraining effect. But again, the difference between Eldred and Dastar is simply the difference between direct and indirect enforcement of "limited Times," and viewed that way the decisions can be reconciled. The Court in Eldred was unwilling to accord "limited Times" more than the scantest direct effect-to do otherwise, to develop a theory of the text's direct constraint that posited more than "limited" = "finite," would involve the Court setting down a policy-driven rule it is less fit than Congress to make, and that could be displaced only via amendment. In contrast, the Court's indirect enforcement of "limited Times" in Dastar requires only that Congress, if it wishes to draw the trademark law in a way that imposes burdens on works in the public domain, make those wishes clear. Congress may do so, of course, simply by amending the Lanham Act. The effect of Dastar, in short, is to create a type of legislative clear statement rule that applies when Congress makes rules that burden the federal public domain. The holding in Dastar is not a constitutional holding in the usual sense of that tenn. Dastar is rather the Supreme Court's proffer on the meaning of "limited Times." That constitutional text, the Dastar Court suggests, means that Congress should not impose burdens, via the copyright laws or otherwise, on works in the public domain. But Congress is not enjoined against creating such burdens. Rather, the Court has advanced its view on the constitutional interests at stake, and has employed a judicial methodology-a form of clear statement rule-designed to advance those interests. This is indirect enforcement of the Intellectual Property Clause. It is worth pausing on the clear statement analogy, because it provides another piece of evidence suggesting that Dastar is not an anomaly. In its Commerce Clause jurisprudence, the Supreme Court has long since retreated to the kind of deference we find in Eldred. In Garcia v. San Antonio Metropolitan Transit, for example, the Court announced that it would no longer try to distinguish between "integral" and "traditional" forms of state regulation in deciding whether Congress' exercise of Commerce Clause power should prevail over inconsistent state regulatory schemes. 80 Rather, the Court would defer to Congress' construction of its own power and rely on the structure of the federal government to protect state sovereignty. Deference, as in Eldred, comes at a price-in the Commerce Clause context, it comes at the risk of important federalism concerns. But in developing its commerce power jurisprudence, the Court ultimately was not content to rely solely on the political process to protect federalism interests. Rather, it developed a postdeference methodology. In Gregory v. Ashcroft, the Court held that it would interpret the federal Age Discrimination in Employment Act to exempt state judges from its prohibition of mandatory retirement ages. 81 This interpretation, the Court said, was actuated by the same federalism concerns the vindication of which it had left to the political process in its direct enforcement of the Commerce Clause 80. 469 U. S. 528 (1985). 81. 501 U. S. 452(1991). limitations. Although the Court was "constrained in [its] ability to consider the limits that the state-federal balance places on Congress' power under the Commerce Clause," it would require clear statements of congressional intent to displace the federal-state boundary: "[I]nasmuch as this Court in Garcia has left primarily to the political process the protection of the States against intrusive exercises of Congress' Commerce Clause powers, we must be absolutely certain that Congress intended such an exercise." 82 If there is reason to believe that Dastar means something beyond the decision in that particular case, then we have to face a second question: What is the scope of the Dastar principle? The only clear answer is at this point we cannot know, but a few predictions seem sensible. One is that if the Dastar model of indirect enforcement of "limited Times" has any future, it will focus on interpretation of the copyright law, rather than non-copyright regimes such as the Lanham Act, that may affect (incidentally) rights of access to public domain works. Another is that indirect enforcement need not be confined to "limited Times." Indeed, the Dastar model is particularly fitting for judicial development of our understanding of how copyright enactments may (or may fail to) "promote the Progress of Science." The Eldred Court made clear that "promote... Progress" has some constraining effect, but, again, indicated that direct enforcement of the constraint would be minimal: "The 'constitutional command,' [the Court] recognized, is that Congress, to the extent it enacts copyright laws at all, creates a 'system' that 'promote[s] the Progress of Science."' 83 By this standard, changes to the copyright laws do not transgress the constraint unless the resulting system as a whole fails to "promote... Progress"-by, for example, creating an environment less conducive to both the creation and spreading of creative works compared with a system of no regulation. This is truly a minimalist approach to enforcement-Congress is permitted wide latitude to under-or over-protect, just so long as some publicregarding justification remains for the system as a whole. Just as Congress is unlikely ever to trigger the direct enforcement of "limited Times" by enacting a perpetual copyright term, Congress is also unlikely to degrade the copyright system to a point that raises the possibility, under the minimalist Eldred standard, of courts' direct enforcement of "promote... Progress." This is so especially because we lack, and are likely to continue to lack, sufficient economic tools to gauge accurately the overall socialwelfare effects of any particular set of copyright rules. In light of all this, our alternatives are clear. Either "promote ... Progress" and "limited Times" are effectively read out of the Constitution, or we find some other way to give effect to those constraints on Congress' power. Part of the answer, of course, is to rely on Congress' own construction of those limitations. But Dastar suggests that deference to Congress is 82. Id. at 464 (citing LAWRENCE TRIBE, AMERICAN CONSTITUTIONAL LAW § 6-25 (2d ed. 1988) ("[T]o give the state-displacing weight of federal law to mere congressional ambiguity would evade the very procedure for lawmaking on which Garcia relied to protect states' interests.")). 83. Eldred v. Ashcroft, 537 U. S. 186, 212 (2003) (citing Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 6 (1966)). [30:3-4 not the entire answer. Courts can and should undertake interpretations of the Copyright Act in ways that advance our understanding of the meaning of "promote . . . Progress." As one example of this, Dotan Oliar has pointed to the concurring opinion of Judge Merritt in Lexmark International, Inc. v. Static Control Components,Inc. 8 4 In that case, the Sixth Circuit rejected a claim by Lexmark, a computer printer manufacturer, that Static Control's manufacture of a computer chip that allowed third-party printer cartridges to work in Lexmark's printers violated the Digital Millennium Copyright Act (DMCA). 85 Among other things, the DMCA proscribes circumvention of technological measures, such as encryption programs, protecting copyrighted works. 86 Lexmark argued that the Static Control chips performed prohibited circumvention by allowing third-party printer cartridges to bypass an authentication process that Lexmark installed in its printers. The authentication process controlled access to Lexmark's Printer Engine Program, a copyrighted piece of software. Without access to the Printer Engine Program, consumers using third-party cartridges would be unable to use their printers. 87 The Sixth Circuit rejected Lexmark's claim on the narrow ground that the Printer Engine Program was itself not encrypted, and therefore Lexmark's authentication sequence did not "effectively" control access to it, as the anti-circumvention provisions of the DMCA require, because anyone in possession of a Lexmark printer could, using basic engineering techniques, read the program directly from the printer's memory. 88 The implication, of course, is that Lexmark would have had a valid DMCA claim had it simply encrypted the Printer Engine Program. On this point, Judge Merritt departed from the majority. He noted that Lexmark's motive in bringing its DMCA claim was not to protect a copyrighted work, but to limit competition in the aftermarket for printer cartridges. Allowing a DMCA claim in these circumstances, Judge Merritt wrote, would place the DMCA at odds with the constitutional command to "promote... Progress." "A better reading of the statute," Judge Merritt concluded, "is that it requires plaintiffs as part of their burden of pleading and persuasion to show a purpose to pirate on the part of defendants:" 89 Congress gives authors and programmers exclusive rights to their expressive works (for a limited time) so that they will have an incentive to create works that promote progress. Lexmark's reading of the extent of these rights, however, would clearly stifle rather than promote progress. It would allow authors exclusive control over not only their own expression, but also over whatever functional use they can make of that expression in manufactured goods. Giving authors monopolies over manufactured goods as well as over their creative expressions will clearly not 84. 387 F.3d 522 (6th Cir. 2004) "promote the Progress of Science and the useful Arts" but rather would stifle progress by stamping out competition from manufacturers who may be able to design better or less expensive replacement parts like toner cartridges. 90 Whether Judge Merritt is correct or not on the merits of competition in the aftermarket for printer cartridges is not important for our purposes here (indeed, if Lexmark faces competition for the consumer's purchase of the original printer vigorous enough to discipline its conduct in the aftermarket for printer cartridges, it is much less clear which interpretation of the DMCA promotes progress than Judge Merritt lets on). More important than the result in the particular case is what Judge Merritt's concurrence represents-a methodology whereby interpretation of the copyright laws is informed by a conception of what does, and what does not, promote progress. Judge Merritt's purposive interpretation of the DMCA is not yet the law, even in the Sixth Circuit. His approach is, however, consistent with the Court's in Dastar, and, like that earlier opinion, represents a methodological accommodation that prevents judicial deference from tipping into judicial submission. Finally, and perhaps most importantly, a third question: What do we get from the Dastar model of indirect enforcement? Put differently, after the Supreme Court established in Eldred a deferential rule for direct enforcement of constraints on Congress' copyright lawmaking power, why should we want to re-introduce courts into the enforcement game? The first thing we might get is a better understanding of the purpose of the Intellectual Property Clause limitations. With respect to the "limited Times" requirement, Dastar already gives us some learning about the nature of the public domain that the constitutional text creates. Dastar proceeds upon a particular conception of what it means for a work to be "in the public domain"-a conception that disfavors burdens that federal, and perhaps even state, regulation might otherwise impose on works that have moved out of their copyright term. So Dastar points toward one avenue for indirect enforcement of "limited Times": where possible, use statutory ambiguity to contend for a conception of the public domain as a privileged space immune from most other forms of regulation. Minimal post-Eldred direct enforcement of "limited Times" means that fewer, and feebler, works are let loose into the public domain. The Dastar-driven reaction is to seek opportunities to suggest that once works are in the public domain, they are free for use without non-copyright encumbrances. The second point to make is that the alternative-Eldred deference, unmitigated by indirect enforcement-looks so unpromising. The Eldred Court's reluctance to enforce more than a minimalist concept of "limited Times" is understandable, because that constraint is not phrased in a way that facilitates judicial enforcement. The "promote ... Progress" constraint presents much the same difficulty. So at least two of the Intellectual Property Clause limitations on Congress' copyright power ("limited Times" and "promote ... Progress") are unlikely to be fully 90. Id. at 553. enforced by courts. The obvious response to this is to shift enforcement responsibility to Congress. And for the most part, that is the result of Eldred. But again, while legislative enforcement may be an emollient, it is itself beset with problems. These are especially visible in the case of copyright. Commercial producers of copyrighted works are few and organized. Users, however, are numerous, unorganized, and each lacks a sufficient individual stake to overcome the barriers to collective action. As a result, Congress' copyright lawmaking is likely over the long term to favor producer interests over those of users. (Of course, many producers are also users, but commercial producers can for the most part thrive in a strict pay-to-use culture, so their user interests are not representative). If we think that the underlying purpose of the "limited Times" language is not simply to proscribe perpetual copyright, but to create and maintain a rich public domain, then we should be looking for ways to counter this under-enforcement problem. Indirect enforcement can help, both by implanting public domainfriendly statutory interpretations and also by producing constitutional proffers that may contribute to Congress' understanding and enforcement of constitutional limitations on its Intellectual Property Clause power. Eldred makes clear that the ultimate authority to articulate the scope of the intellectual property power will belong, in most cases, to Congress. The question, post-Eldred, is whether the courts will be available to help. Indirect enforcement provides a way for courts to do so consistently with Eldred's fundamental and largely sensible commitment to deference. Most of what has been said thus far focuses on the possibility of indirect enforcement of Intellectual Property Clause limitations on Congress' lawmaking power. As I suggested, however, in the Introduction, a methodology of indirect enforcement need not be confined to the Intellectual Property Clause. The methodology may be useful wherever courts have ceded to Congress a primary role in interpreting difficult constitutional text. More than thirty years ago, Henry Monaghan outlined, in a valuable foreword to a Harvard Law Review issue reviewing the Supreme Court's 1974 term, a methodology for courts' development of a "constitutional common law." 9 1 Monaghan's article distinguished between true constitutional "interpretation"-i.e., explication of the Constitution's text by courts in a way that binds the legislature and supersedes ordinary lawmaking-and a "substructure of substantive, procedural, and remedial rules drawing their inspiration and authority from, but not required by, various constitutional provisions. ' modification, or even reversal by Congress." 93 The model of indirect constitutional enforcement set out here grows out of concerns different from those that animated Monaghan. More importantly, what I have described here does not track Monaghan's distinction between "core" constitutional policies, demanding direct enforcement by courts, and those "subconstitutional" rules (i.e., judicially-established policies that aid in the enforcement of constitutional rights, but are not mandated by the Constitution itself) meet for development as constitutional common law. My goal is to inquire into judicial methodologies whereby courts may contribute to the enforcement of core constitutional policies-such as the textual command that Congress grants copyrights and patents only for "limited Times"-in instances where primary interpretive authority has already been ceded to Congress. 94 A broader exploration of the possibilities of indirect enforcement of the Constitution is work for another day. For the moment, let us end this article by moving back to the Intellectual Property Clause. I would like to give an example of indirect enforcement by highlighting a statutory interpretation question that has important implications for the public domain and that Dastar's methodology might help illuminate. This example involves the "anticircumvention" provisions of the Digital Millennium Copyright Act, or DMCA. Codified in § 1201 of Title 17, these provide, in pertinent part, as follows: inherently fugitive property, and enforcement in individual cases of decryption would be very difficult. There is something real at stake here. Imagine, then, a declaratory judgment complaint filed against the major film studios by a programmer who has written a CSS decryption tool and who wishes now to distribute that tool free of charge for the purpose of facilitating individuals' access to public domain films. The complainant seeks a declaration that the DMCA does not prohibit his distribution of the decryption tool. What is a court to do? Here is a promising occasion to enforce indirectly the Intellectual Property Clause limitations-in particular, the "limited Times" requirement. Interpreting § 1201 to allow circumvention, and trafficking in circumvention tools, for the purpose of decrypting public domain works, protects the public's federal right to copy and to use expired copyrights given such solicitude in Dastar. This liberalizing interpretation would ensure that works continue to move-in a real, practical sense-into the public domain as we proceed further down the road to pure digital distribution of artistic and literary works. The contrary interpretation would permit the digitization of our culture to beggar the public domain. Works would remain formally in the public domain, but access to them would be progressively restricted as an ever-greater share of the stock of these works was placed under locks that § 1201 made unlawful to pick. An analysis driven by the Dastar principles would choose the former interpretation as a way to vindicate the otherwise underenforced "limited Times" requirement. The result would be an indirect enforcement of this constraint on Congress' intellectual property power. Indirect, because undertaken within the context of the court's interpretation of a statute. Indirect, because if Congress disagrees with a court's Constitution-regarding interpretation of § 1201, it can displace it by amending the provision. The holding in such a case would present a construction of § 1201 and decide a concrete dispute. It would also, more significantly for our purposes, advance a constitutional proffer. The message sent by a court to Congress would be that "limited Times" does more than simply proscribe perpetual copyright. It also creates a public domain, and imposes limits on the burdens Congress may place on public access to works therein. Exactly what those limits are would be Congress' role ultimately to determine, but under the model of indirect enforcement I have sketched out, Congress would undertake its interpretive task with the benefit of input-non-binding, but hopefully illuminating-from the courts. The Eldred Court was asked to strike down a copyright enactment as inconsistent with the "limited Times" constraint. It was asked, that is, to enforce the "limited Times" provision directly. And it did so, albeit not in the manner petitioners would have preferred. The Eldred Court advanced a minimalist account of the constraining effect of "limited Times"-an account that cannot possibly fully enforce the constitutional limitation, but which represents what the Court is willing [30:3-4 to do in light of the very high stakes (i.e., the potential invalidation of a federal statute and the consequent destabilization of the scheme of U.S. copyright) inhering in the direct enforcement of constitutional limitations on Congress' legislative power. In contrast, the Dastar Court was asked to interpret the reach of the federal trademark law. There was no question of the law's constitutionality, only its meaning. And yet, in spite of the absence of a direct constitutional question-or perhaps because of that absence-the Dastar Court was willing to articulate the purpose of the "limited Times" requirement far beyond the veneer-thin account given in Eldred. Dastar might be an anomaly. Or it might represent a new, post-Eldred paradigm for judicial enforcement of the limitations that the Intellectual Property Clause imposes on Congress' copyright lawmaking power. I think it is the latter, but in the end, the precise meaning of Dastar does not matter much. The opinion can be read as an example of indirect enforcement, and even if it was never intended that way it shows us how such a methodology might work. The indirect methodology has its merits, not the least of which might be courts' increased willingness to give us their opinions about the Constitution's meaning once freed from the Marbury straightjacket. And given the extent to which the Court already has shifted to Congress authority to determine the metes and bounds of its own enumerated lawmaking power, the monologic, all-or-nothing approach to judicial review flowing from our traditional understanding of Marbury looks increasingly stilted and inappropriate to the task. CONSTITUTIONALISM AND JUDICIAL REVIEW (2004); LAWRENCE G. SAGER, See, e.g., United States v. Lopez, 514 U.S. 549 (1995) (invalidating federal Gun-Free School Zones Act based on uncertain and tangential relationship of the regulation to interstate commerce). 33. U.S. CONST., art. I, § 8, cl. 3 ("[The Congress shall have power t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.") 42. Christopher Sprigman, Reform(aliz)ing Copyright, 57 STAN. L. REv. 485, 520 (2004).43. WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF INTELLECTUAL 45. See, e.g., Brett M. Frischmann, An Economic Theory of Infrastructure and Commons Management, 89 MINN. L. REV. 917 (2005). 87. Lexmark, 387 F.3d at 529-30. 88. Id. at 546. 89. Id. at 552 (Merritt, J., concurring).

nonetheless makes some sense as a way of allocating institutional responsibility. Eldred is but the latest instance of the Court's broader commitment to allocating to Congress, in the case of economic regulations, principal responsibility to interpret and implement constitutional limitations on its legislative power.

Is the Eldred Court's decision deference or submission? Justice Stevens, dissenting in Eldred, stated that the majority's opinion had effectively done the latter: "Fairly read, the Court has stated that Congress' actions under the Copyright/Patent Clause are, for all intents and purposes, judicially unreviewable. That result cannot be squared with the basic tenets of our constitutional structure." 6 Whether Eldred is, as Justice Stevens suggests, effectively a rule of nonreviewability depends in large part on what kind of deference courts understand the Eldred rule to require. That question remains to be resolved.

6. Eldred, 537 U.S. at 242 (Stevens, J., dissenting). 7. Dastar, 539 U.S. at 34 (internal quotations omitted).

How can these two decisions be reconciled? In trying to work through this question, I made progress only when I stopped thinking about Eldred and Dastar as incommensurable intellectual property cases and began instead to appreciate them principally as examples of the different ways that courts can allocate institutional responsibility for constitutional interpretation and enforcement. The difference between the two cases, it seems to me, is the difference between direct and indirect enforcement of the Constitution.

What do I mean by this? Courts directly enforce the Intellectual Property Clause when they interpret some text in that provision, determine how it limits Congress' lawmaking power and then apply that limitation to judge the validity of some part of a copyright enactment. This is what the Court did in Eldred, albeit with very little constraining effect.

by the Constitution on legislation in this field over those that do not.

Of course, use of the indirect methodology carries a cost. The methodology requires that courts adhere to a strong formalism in announcing whether their decisions are constitutional proffers or constitutional rulings. Is the Court speaking ex cathedra or in its alternative role as constitutional profferor? Telling the difference between the two involves real costs and uncertainties-not least the dissonance that would attend, at least for a time, judicial speech about the Constitution that is aimed to inform and persuade, but not to bind.

The Court's deferential approach in Eldred to judging the validity of Congress' copyright lawmaking is hardly an outlier. Indeed, the Court's posture in Eldred is consistent with the current state of its Commerce Clause 30 and Taxing and Spending Clause 31 jurisprudence: a high degree of deference, subject only to judicial enforcement at the limits. 32 And in each of these cases, it is in some sense the constitutional language itself that triggers the Court's resort to deference. In the case of both the Commerce 33 and Taxing and Spending 34 Clauses, judicial 25.

See id. at 200 ("History reveals an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime.").

Id. (quoting N.Y. Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) ("[A] page of history is worth a volume of logic.")).

29. Although the definitional theory equating "limited" with "fixed" is weak, one can hardly blame the Eldred petitioners for advancing it. The alternative-asking the Court to establish the boundary beyond which a term was too long to be "limited"-was even less attractive, as it explicitly raised a policy question not susceptible to principled judicial determination. Hence the rare point on which petitioners and the Court agreed: "Whether 50 years is enough, or 70 years too much ... is not a judgment meant for this Court." Eldred, 537 U.S. at 193 (quoting Brief for Petitioners at 14).

See, e.g., Gonzales v. Raich, 545 U.S. 1 (2005) (upholding federal law prohibiting cultivation and possession of small amounts of marijuana for medicinal purposes based on "cumulative" effect of medical marijuana on interstate commerce).

U.S. CONST., art. 1, § 8, cl. I ("The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.").

See, e.g., Gonzales, 545 U.S. at I (upholding federal anti-medical marijuana law in spite of conflict with state law legalizing medical marijuana); Oklahoma v. United States Civil Service Commission, 330 U.S. 127 (1947) (upholding provision of federal law granting federal funds to state governments on condition that recipient states adopt civil service employment systems and limit political activities of a broad category of state government employees).

access interests shared by the broader public, 37 judicial deference may come at the expense of the enumeration principle.

The upshot, of course, is that the length of the copyright term is a critical element in determining whether the public domain in artistic and literary works is of much use to us. A public domain that contains a large number of relatively recent works serves its purpose as a repository from which present-day creators may draw to continue and enrich the cultural and political conversation. In contrast, a "public domain" that contains only very old works-the vast majority of which will possess neither commercial nor cultural value by the time they emerge from copyright-is a less valuable resource.

For these reasons, the Court's opinion in Eldred is troubling if we believe that the "limited Times" text was placed in the Constitution not just as an injunction

B. DASTAR AND POST-ELDRED JUDICIAL ENFORCEMENT OF THE INTELLECTUAL PROPERTY CLAUSE

49. 539 U.S. 23 (2003). States is a party, to claim authorship in her works. 5 1 I want to focus on what may ultimately be the most important aspect of Dastar-the decision's strong signal that courts retain a significant role post-Eldred in enforcing limitations on the Congress' intellectual property power.

[30:3-4 to be damaged by such act. 62 Fox claimed that Dastar, in marketing Campaigns as its own product without acknowledging its reliance on the Crusade television series, violated § 43(a)(1)(A) by making a false designation of origin, false or misleading description of fact, or false or misleading representation of fact likely to cause confusion as to the origin of the Campaigns video. This claim, said the Court, presented a statutory construction problem-how to understand the meaning of the terms "origin" and "goods":

is [perhaps] ... different for what might be called a communicative product--one that is valued not primarily for its physical qualities ... but for the intellectual content that it conveys, such as a book or, as here, a video. The purchaser of a novel is interested not merely, if at all, in the identity of the producer of the physical tome (the publisher), but also, and indeed primarily, in the identity of the creator of the story it conveys (the author). 67

Under the Dastar Court's artificially-straightened definition of "goods," consumers once could rely on the Lanham Act to ensure that software manufacturers did not mislead them about the source of the five-cent plastic disk on which a $500 copy of Microsoft Office is distributed. Now that the disk is gone, they are entirely on their own. This result is clearly at odds with the purpose of the Lanham Act's prohibition of passing off. And it is also at odds with the Lanham Act's text. So why would the Court stretch so far to push copyrighted works outside the Lanham Act's passing off prohibition?

The real impetus for limiting the reach of the Lanham Act, Justice Scalia's opinion makes clear, is driven by a concern that has nothing to do with statutory text: "The problem with this argument according special treatment to communicative products is that it causes the Lanham Act to conflict with the law of 67. Id. at 33.

The opinion in Dastar does not tell us which to choose, so we cannot say anything definitively. Nonetheless, the second possibility seems to me more likely, for two principal reasons:

First, the Court in Dastar is not interpreting the Copyright Act, which leaves us to ask why Justice Scalia would be engaged in the development of a common law copyright principle. What effect, one might ask, could such a principle have on the law of trademark? The Copyright Act's own preemption provision does not purport to reach other federal statutes, and Justice Scalia's opinion in Dastar is not phrased in terms of either express or implied preemption.

We cannot yet know Dastar's precise implications, but it is clear at least that the decision's portents for courts' post-Eldred enforcement of the Intellectual Property Clause have been given insufficient attention. At a minimum, Dastar suggests that non-copyright statutes such as the Lanham Act should be interpreted, where possible, in a way that avoids burdening access to works in the public domain. And 74. See Bell, Misunderestimating Dastar, supra note 50 (arguing that Dastar dramatically expands the scope of copyright preemption).

if ambiguities in non-copyright statutes are subject to this constitution-regarding maxim of statutory interpretation, what about the ambiguities in the copyright laws themselves?

located, the Court held, "in the constitutional provision concerning authors and inventors, and their writings and discoveries. "78 Nor could the power to enact the particular trademark statute at issue in the Trade-Mark Cases be located within the Commerce Clause-nothing in the then-existent federal trademark statute limited its coverage to marks used in interstate commerce, 79 and given the narrow scope accorded by courts to the commerce power at the time, that omission was fatal.

Again, this is not a definitive reading of Dastar; that opinion does not admit certainty in its interpretation. But it is at least a plausible reading-and by my lights, for reasons explained above, a more than plausible reading. And if this is what the Court has done, it is an astonishing result. The Dastar Court has, in effect, identified the public domain as core constitutional policy, and has promoted that policy via public domain-friendly interpretation of a non-copyright statute. This raises three immediate questions:

Id. at 464 (citing LAWRENCE TRIBE, AMERICAN CONSTITUTIONAL LAW § 6-25 (2d ed. 1988) ("[T]o give the state-displacing weight of federal law to mere congressional ambiguity would evade the very procedure for lawmaking on which Garcia relied to protect states' interests.")).

83. Eldred v. Ashcroft, 537 U. S. 186, 212 (2003) (citing Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 6 (1966)). [30:3-4 not the entire answer. Courts can and should undertake interpretations of the Copyright Act in ways that advance our understanding of the meaning of "promote . . . Progress."

Giving authors monopolies over manufactured goods as well as over their creative expressions will clearly not 84. 387 F.3d 522 (6th Cir. 2004)

Finally, and perhaps most importantly, a third question: What do we get from the Dastar model of indirect enforcement? Put differently, after the Supreme Court established in Eldred a deferential rule for direct enforcement of constraints on Congress' copyright lawmaking power, why should we want to re-introduce courts into the enforcement game?

The second point to make is that the alternative-Eldred deference, unmitigated by indirect enforcement-looks so unpromising. The Eldred Court's reluctance to enforce more than a minimalist concept of "limited Times" is understandable, because that constraint is not phrased in a way that facilitates judicial enforcement.

II. BRIEF CONCLUDING REMARKS AND A CANDIDATE FOR INDIRECT ENFORCEMENT

Most of what has been said thus far focuses on the possibility of indirect enforcement of Intellectual Property Clause limitations on Congress' lawmaking power. As I suggested, however, in the Introduction, a methodology of indirect enforcement need not be confined to the Intellectual Property Clause. The methodology may be useful wherever courts have ceded to Congress a primary role in interpreting difficult constitutional text.

Imagine, then, a declaratory judgment complaint filed against the major film studios by a programmer who has written a CSS decryption tool and who wishes now to distribute that tool free of charge for the purpose of facilitating individuals' access to public domain films. The complainant seeks a declaration that the DMCA does not prohibit his distribution of the decryption tool. What is a court to do?

In contrast, the Dastar Court was asked to interpret the reach of the federal trademark law. There was no question of the law's constitutionality, only its meaning. And yet, in spite of the absence of a direct constitutional question-or perhaps because of that absence-the Dastar Court was willing to articulate the purpose of the "limited Times" requirement far beyond the veneer-thin account given in Eldred.

CONSTITUTIONALISM AND JUDICIAL REVIEW (2004); LAWRENCE G. SAGER,

See, e.g., United States v. Lopez, 514 U.S. 549 (1995) (invalidating federal Gun-Free School Zones Act based on uncertain and tangential relationship of the regulation to interstate commerce). 33. U.S. CONST., art. I, § 8, cl. 3 ("[The Congress shall have power t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.")

42. Christopher Sprigman, Reform(aliz)ing Copyright, 57 STAN. L. REv. 485, 520 (2004).43. WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF INTELLECTUAL

45. See, e.g., Brett M. Frischmann, An Economic Theory of Infrastructure and Commons Management, 89 MINN. L. REV. 917 (2005).

87. Lexmark, 387 F.3d at 529-30. 88. Id. at 546. 89. Id. at 552 (Merritt, J., concurring).