Copyright, Cognitive Linguistics, and Originalism

Metaphor plays a powerful role in many aspects of life, in so many different aspects that the term itself stands for different things. There are image metaphors used in literature ("Juliet is the Sun," "Aryeh is a Lion"). These illustrate the figurative aspect of metaphor: no one thinks that Juliet actually is the solar entity or that Aryeh is the King of the Jungle (itself another metaphor). By associating the person with something different we intend to make a statement about the person's character.

Another use of metaphor is conceptual. The conceptual metaphor goes beyond metaphor as a figure of speech, and instead regards metaphors as conceptual structures even though those structures are expressed linguistically. Cognitive linguists believe that via conceptual metaphors, patterns of reasoning are carried over from one part of the metaphor to the other. A classic example, given by George Lakoff and Mark Johnson in "Metaphors We Live By," is the concept "Argument" and the conceptual metaphor "Argument is War," from which we derive a number of expressions found in law: "The judge shot down all my arguments" or "My arguments were right on target." According to cognitive linguistics, the point is not that arguments are a subspecies of war (the latter is physical, the former, verbal), but rather that how we approach arguments is influenced by regarding them metaphorically as a battle in which one side or the other wins, something quite embedded in the advocacy approach to law.

What does this have to do with copyright, much less originalism - an approach to Constitutional interpretation that seeks to determine the meaning of a Constitutional term by its understanding at the time of the Constitution's adoption? In their article, "To Promote the Progress of Science": The Copyright Clause and Congress's Power to Extend Copyrights, published in 16 Harvard Journal of Law & Technology 1 (2002), and which also served as an amicus brief in the Eldred case, Senator Orrin Hatch and Professor Thomas Lee offered an interpretation of the term "Progress" in Article I, sec. 8, cl. 8. They felt compelled to do so based on their position that the "To promote the Progress of Science" language does act as some form of substantive limitation on Congress's power to enact copyright legislation. In this respect, they differed, as it turned out, from the Supreme Court majority, although their interpretation of the term is so broad as to render any difference theoretical. Moreover, Hatch and Lee also referred, as did the Eldred majority, to the "promote" language as a "preamble," a novel interpretative approach under which a single sentence is atomized and whose beginning is thereby rendered superfluous to the remainder. So much for giving every word a meaning.

What fascinated me about the Hatch/Lee article is how it went about ascribing a meaning to "progress." Taking an originalist approach, they looked to a number of contemporary sources, including the Pennsylvania Gazette, published from 1728 to 1800, and described as the New York Times of the 18th century. (Here's a 1750 edition published by Ben Franklin). In all the sources they looked at though, they were openly pursuing progress as "a notion of physical movement or dissemination," in other words, as a metaphor, something they acknowledge in the examples they quote, such as Alexander Hamilton's comment in Federalist Papers No. 15 in which he refers to readers' understanding as a "road they have to pass," or a "field they have to travel." But for Hatch and Lee, this becomes quite literal, or as cognitive linguists would say, they adopt a substitution theory of metaphor in which a metaphorical expression replaces a literal expression that is purported to have the same meaning. Cognitive linguistics reject the substitution theory.

But here is what Hatch and Lee do with it: they use the conceptual metaphor of progress as physical movement as a literal definition, so that it trumps other literal meanings of progress, such as intellectual improvement. (They do acknowledge this other possible meaning). This trumping is necessary because they both (1) accept that "progress" acts as a limitation on Congress's power but (2) don't want it to really act as one, since to do so would mean that Eldred would have had come out differently given that the challenge in Eldred - to the term extension for preexisting works - can't be said to have led to new works . They therefore focus on the physical, that is, new means of disseminating old works. "Progress" is, in other words, physical, physically providing the means of getting works out, even old ones. So long as term extension increases this physical movement, it is, definitionally, promoting the "progress" of science.

Wholly aside from this very odd mixing of originalism and the substitutional theory of metaphor, Hatch and Lee are wrong on an number of important points. I will mention only one, an historical point. They incorrectly say that before 1978, federal copyright law did not protect unpublished works. The 1909 Act protected, in Section 12, a large number of unpublished works. So too did the 1790 Act. This point was important for Hatch and Lee because they used it as proof that copyright acts had always been involved with movement, publishing. One wonders then if Senator Hatch believes that protection for unpublished works is and always has been unconstitutional.