joegratz.net

In yet another insightful and interesting post, Bill Patry writes about the history of the legislation that was upheld in yesterday’s Luck’s Music Library decision. Most intriguingly, he notes:

I did not believe that the legislation provided a direct incentive for the creation of new works, nor that, divorced from the Berne obligation, restoration represented good policy. But honesty in treaty adherence is good policy, and retroactive protection for U.S. works overseas is of benefit to both U.S. copyright owners and to the system as a whole. I thought those two objectives sufficient, from a policy and constitutional standpoint. And I say this as someone who believes, more fervently than even Larry Lessig, that the “Promotion of the Progress of Science” language in Article I, section 8, clause 8 is a real substantive limitation on Congress’s power. But I also believe that one must look to the system as a whole to see whether there has been a benefit provided by legislation, and in the case of GATT restoration, I answer that question affirmatively.

He’s right to divorce this issue from term extension; they are conceptually distinct. And I think that his view of the “promote the progress” language as a question of net effects is quite right. The Luck’s Music, Golan, and Kahle cases, taken together, simply argue that Berne implementation had a negative net effect on the progress of science — a matter of policy on which reasonable minds, defining progress differently, disagree.