The Institutional Progress Clause

There is a curious anomaly at the intersection of copyright and free speech. In cases like Citizens United v. Federal Election Commission, the United States Supreme Court has exhibited a profound distaste for tailoring free speech rights and restrictions based on the identity of the speaker. The Copyright Act, however, is full of such tailoring, extending special rights to some classes of copyright owners and special defenses to some classes of users. A Supreme Court serious about maintaining speaker neutrality would be appalled.

A set of compromises at the heart of the Copyright Act reflects interest-group lobbying rather than a careful consideration of what kinds of institutions best realize the goal of the Progress Clause--the provision that expressly empowers Congress to provide copyright protection. Assuming the democratic process is flawed for predictable public-choice reasons, how might the Court address these problems in the Copyright Act? The answer is institutional analysis. First Amendment scholars have for some years used institutions as analytical and normative tools.

That framework considers how different social institutions may serve First Amendment goals--like creating a robust marketplace of ideas--through their structure and function. This Article is the first to explore how the Progress Clause can serve a similar role and provides a framework to consider whether certain institutions are particularly well-suited to enable the creation, dissemination, or preservation of valuable expression. Inasmuch as Congress has granted special privileges to institutions that serve Progress Clause values, the speaker-based tailoring is constitutionally acceptable--even if the process by which it occurs is suspect. Applying this institutional framework can help clarify not only the extent to which the current Copyright Act achieves the constitutional goals it was crafted to reach, but also when Congress should adopt or reject amendments and extensions to the Copyright Act.