\u3ci\u3eEldred\u3c/i\u3e and \u3ci\u3eLochner\u3c/i\u3e: Copyright Term Extension and Intellectual Property as Constitutional Property

Since the ratification of the constitution, intellectual property law in the United States has always been, in part, constitutional law. Among the enumerated powers that Article I of the Constitution vests in Congress is the power to create certain intellectual property rights. To a remarkable extent, scholars who have examined the Constitution\u27s Copyright Clause have reached a common position. With striking unanimity, these scholars have called for aggressive judicial review of the constitutionality of congressional legislation in this area. The champions of this position--we refer to them as the IP Restrictors--represent a remarkable array of constitutional and intellectual property scholars. In this terms\u27s Eldred v. Aschroft, leading IP Restrictor Lawrence Lessig, representing petitioner Eric Eldred, sought to convince the Supreme Court that the IP Restrictors\u27 view of the Copyright Clause was the correct one. By a vote of 7-2, the Supreme Court rejected Eldred\u27s claim and upheld the statute. But while the Court rejected the IP Restrictors\u27 vision, it did not offer a satisfactory competing conception of the Copyright Clause and how the courts should construe it. Critically, even though the standard of review was of central significance, the Court applied a deferential form of rational basis scrutiny without explaining why this was the appropriate standard. This paper develops the case for deferential review of congressional legislation in the area of intellectual property and, at a deeper level, offers a new paradigm for understanding the Copyright Clause. We propose that from the vantage point of constitutional law, intellectual property should be treated as a form of constitutional property. Deference to congressional judgments is warranted because congressional legislation affecting intellectual property is analytically similar to congressional legislation affecting other forms of property. Courts subject congressional legislation affecting traditional forms of property to deferential review because of concerns about institutional competence and respect for majoritarian decisionmaking. These two concerns in conjunction with proper regard for holistic constitutional interpretation should also lead courts to deferential review of congressional legislation affecting intellectual property.In developing our position, we draw on constitutional history and, in particular, the lessons of Lochner v. New York. In defense of their vision of the Constitution, the IP Restrictors and the dissenters in Eldred make claims about the original understanding that, to an astonishing extent, echo those made by proponents of Lochner-era jurisprudence. We argue, however, that these claims fail for two reasons. First, the IP Restrictors and the dissenters disregard the limited scope of judicial review at the time of the Founding. Additionally, the IP Restrictors and dissenters disregard the range of views among the Founders about monopolies

The New Privacy

This article reviews Overseers of the Poor: Surveillance, Resistance and the Limits of Privacy John Gilliom (2001). In 1964, as the welfare state emerged in full force in the United States, Charles Reich published The New Property, one of the most influential articles ever to appear in a law review. Reich argued that in order to protect individual autonomy in an age of governmental largess, a new property right in governmental benefits had to be recognized. He called this form of property the new property. In retrospect, Reich, rather than anticipating trends, was swimming against the tide of history. In the past forty years, formal claims to government benefits have become more tenuous rather than more secure. Overseers of the Poor: Surveillance, Resistance and the Limits of Privacy, by John Gilliom, an associate professor of political science at Ohio State University, demonstrates both the tenuousness of welfare rights today and the costs that this system imposes on individual autonomy. In Overseers of the Poor, Gilliom uses his case study of welfare recipients as the occasion for an attack on classic notions of privacy rights. Gilliom finds that welfare clients do not engage in privacy talk - indeed, he finds the concept to be devoid of value for the welfare recipients. Here, another comparison can be made with Reich\u27s new property. Reich explicitly tied his idea of a property right in government entitlements to privacy. He felt that the new property was needed to protect privacy and, in particular, individual autonomy. Reich\u27s notion of privacy reaches back to a classic concept of privacy, one that we term the old privacy. It is precisely this classic idea that Gilliom finds welfare recipients to have rejected. Theoretical work inside and outside of the legal academy has pointed, however, to a new privacy. The new privacy is centered around Fair Information Practices ( FIPs ) and is intended to prevent threats to autonomy. The idea of privacy centered on FIPs is based not on a property interest in one\u27s information, but the idea that processors of personal data should be obliged to follow certain standards. If, as we will see, classic notions of privacy are not of much use in the welfare state, the new privacy may be. This review begins by examining Gilliam\u27s methodology and findings. It credits the insights of his look at the inner world of welfare recipients, but finds that he appears to ignore the need for income limits on aid recipients and the concomitant need for at least some personal information to enforce these limits. It also criticizes his failure to explore an interaction of an ethics of care among welfare recipients with possible use of retooled privacy rights or interests. In the second part of this review, The authors consider the extent to which theoretical work inside and outside of the legal academy points to a new privacy and discuss how Gilliam\u27s empirical research provides support for that scholarship. They also evaluate the extent to which the new privacy, centered on PIPs, can prevent the threats to personal autonomy so poignantly identified by Gilliom

The Protection of Privacy in Health Care Reform

Legal regulation of the privacy of medical information is now at a critical stage. Americans are highly concerned about the processing and use of their personal data. Over three-quarters of the public currently believes that the individual has lost control of how personal information is circulated and applied by companies., Indeed, a recent poll reveals that those who know the most about the current protection of medical information-physicians, heads of medical societies, health insurers, and hospital CEOs-are also the most concerned about threats to personal privacy. Social concern about the threat to informational privacy has resulted in strong approval for the creation of detailed protections for medical information Support for increased protection is well justified; current regulation of health care data is not successful. Moreover, the flaws in the existing legal structure will be exacerbated by inevitable increases in the demand for personal medical information. In particular, many current proposals for health care reform seek to increase access to personal medical information for a host of entities as a means to control medical costs, improve the provision of medical services, and further scientific research. This increased access will occur through continued computerization of health care data and through opening access to personal medical information

Privacy and Democracy in Cyberspace

In this Article, Professor Schwartz depicts the widespread, silent collection of personal information in cyberspace. At present, it is impossible to know the fate of the personal data that one generates online. Professor Schwartz argues that this state of affairs degrades the health of a deliberative democracy; it cloaks in dark uncertainty the transmutation of Internet activity into personal information that will follow one into other areas and discourage civic participation. This situation also will have a negative impact on individual self- determination by deterring individuals from engaging in the necessary thinking out loud and deliberation with others upon which choice- making depends. In place of the existing privacy horror show on the Internet, Professor Schwartz seeks to develop multidimensional rules that set out fair information practices for personal data in cyberspace. The necessary rules must establish four requirements: (1) defined obliga- tions that limit the use of personal data; (2) transparent processing systems; (3) limited procedural and substantive rights; and (4) external oversight. Neither the market nor industry self-regulation are likely, however, to put these four practices in place. Under current conditions, a failure exists in the \u27privacy market. Moreover, despite the Clinton Administration\u27s endorsement of industry self-regulation, this method is an unlikely candidate for success. Industry self-regulation of privacy is a negotiation about the rules of play for the use of personal data. In deciding on these rules, industry is likely to be most interested in protecting its stream of revenues. Therefore, it will benefit if it develops norms that preserve the current status quo of maximum information disclosure. This Article advocates a legislative enactment of the four fair information practices. This legal expression of privacy norms is the best first step in promoting democratic deliberation and individual self-determination in cyberspace. It will further the attainment of cyberspace\u27s potential as a new realm for collaboration in political and personal activities. Enactment of such a federal law would be a deci- sive move to shape technology so it will further-and not harm-demo- cratic self-governance