CHALLENGE TO CONSTITUTIONALITY
The United States Constitution provides, in Article I, section 8,
clause 8, that Congress has the power "to 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." Does the "limited times"
requirement mean any term of years that is mathematically finite (like one million or one
billion years)? Or do we determine how long is "limited" by looking
at the constitutional purpose "to promote the progress of science"? Does
not the First Amendment play an important role in determining how far Congress can go in
limiting speech (by extending copyrights, especially on existing works)?
A lawsuit challenging
the constitutionality of the term extension legislation went all the
way to the United State Supreme Court. Unfortunately, the Court
on January 15, 2003, rejected the challenge by a vote of 7-2.
This basically means that Congress is free to continue to extend the
copyright term at will (more accurately, at the will of the
rent-seeking owners of old copyrights who naturally do not want to see
their royalty streams run dry).
on the litigation, see Media
Coverage. For some background on the Eldred case, see the press release issued by
Eldritch Press, and the August 29, 1999 article by Daren Fonda in the Boston Globe, Copyright's Crusader. Bridget
McMenamin of Forbes has also done a short piece on the case and the issues entitled Mickey's Mine! (suggesting that the
case may appeal to judges rediscovering the limits of federal power). A news story
in Wired by Joyce Slaton dated January 13, 1999, also explains some of the
background, A Mickey Mouse Copyright Law?
(also available with more colorful graphics and related links directly from the Wired web
site). See also Carl Kaplan's report Online Publisher Challenges Copyright Law.
in the January 15, 1999, edition of the New York Times . For
Larry Lessig's personal estimate of how the oral argument went before
the Supreme Court, click here.
The suit was filed by Professors
Larry Lessig and Charles Nesson of Harvard and the Boston the law firm of Hale and Dorr on behalf of Eldritch Press,
originally naming Attorney General Janet Reno as defendant and
eventually called Eldred v. Ashcroft. A number of other parties
later joined the suit as plaintiffs. This
action challenged the constitutionality of the term extension legislation on both First
Amendment grounds and on the basis that it was outside Congress's power under the
"promotion of progress of science" clause quoted above. The legal
documents that have been filed in this cases are available at the Copyright's Commons web site.
Complaint, filed June 24, 1999
Motion for Judgment on the Pleadings, filed June 25, 1999
filed June 28, 1999, by Professor Arthur R. Miller on behalf of various parties and groups
representing copyright owners, such as ASCAP and the Association of American Publishers,
in support of the Government's Motion for Judgment on the Pleadings (pdf format)
Plaintiff's Response to the Govts
Motion for Judgment on the Pleadings and Cross-Motion for Summary Judgment, filed July
23, 1999, by Professor Larry Lessig (pdf format)
Government's Response to Plaintiff's
Motion for Judgment on the Pleadings (and Reply to Plaintiff's response to the
Government's June 25 motion), filed August 23, 1999 (pdf format)
Amici Brief, filed August 23,
1999, in support of the Government's Response of the same date (pdf format)
Plaintiff's Reply Brief, filed
September 10, 1999, pointing out the deficiencies in the Government and Amici responses
and cogently reiterating the basic arguments that the First Amendment, the "patent
and copyright" clause, and the public trust doctrine all compel a finding of
unconstitutionality of the CTEA.
Decision of the District Court for the District of Columbia, Eldred
v. Reno, 74 F. Supp. 2d 1 (D.D.C. 1999), upholding the
constitutionality of the CTEA.
Plaintiff's Appellate Brief (pdf
format) filed May 22, 2000, arguing that the CTEA violates the Constitution. First,
Congress lacks power under the Patent and Copyright Clause to recognize copyright rights
that fail to supply an incentive for the creation of works (i.e., that "promote the
progress of science"). A retroactive term extension cannot supply an incentive
for the creation of new works, because the works in question are already in
existence. An extended term thus rewards works that are not "original," in
contravention of the clauses's purpose as previously interpreted by the Supreme
Court. Second, the 20-year extension violates the "limited times"
provision of the Patent and Copyright Clause. The meaning of "limited
times" must be determined in terms of the purpose of copyright--to promote the
progress of science. An extended term simply limits public access and use and,
contrary to the purpose of the congressional power, inhibits rather than promotes the
dissemination of knowledge and culture. Third, the CTEA violates the First Amendment
in that it fails to advance important governmental interests unrelated to the suppression
of speech and is in any event more burdensome than necessary to achieve the governmental
Eagle Forum's Amicus Brief filed
June 6, 2000, arguing that the CTEA is unconstitutional. Click here for a summary of the brief by
students working with Copyright's Commons.
Government's Response Brief filed July
2000 seeking to uphold the decision of the district court validating Congress's action in
adopting the CTEA. Click here for a summary of the brief by
students working with Copyright's Commons.
Decision of the D.C. Circuit in Eldred
v. Reno, 239 F.3d 372 (D.C. Cir. 2001), upholding the
constitutionality of the CTEA.
of the D.C. Circuit panel dated July 13, 2001, 255 F.3d 849
(D.C. Cir 2001), denying
plaintiff's petition for rehearing.
Plaintiffs dated April 2, 2001, for rehearing en banc by all
judges on the DC Circuit (pdf format)
Plaintiffs dated Oct. 11, 2001, for a hearing by the United
States Supreme Court (pdf format)
the Government dated December 2001 opposing a hearing by the
Supreme Court (pdf format)
Plaintiffs to Government's Response (pdf format)
Brief of Copyright Law Professors in support of plaintiffs'
petition for a writ of certiorari (pdf format)
Brief of Constitutional Law Professors in support of plaintiffs'
petition for a writ of certiorari (pdf format)
Briefs of the American
Association of Law Libraries, the Eagle
Forum and Cato Institute, and the Internet
Archive in support of petition for certiorari.
States Supreme Court grants certiorari, Feb. 19, 2001 (32 USLW
is limited (35 USLW 3533) to the first two issues raised by the
plaintiffs (CTEA is unconstitutional under the intellectual property
clause and because of the First Amendment). Many briefs were
filed with the Supreme Court, available here.
opinion of the United States Supreme Court, Jan. 15, 22003,
rejecting the challenge. Dissenting opinions came from
proponents argued in the Eldred case that harmonization of
the U.S. terms with those of the EU is an important justification for
the legislation. To check the bona fides of this claim, blandly
accepted by Justice Ginsburg and the Court majority, look at
the Harmonization Chart
I have made comparing the complex array of terms offered under both
SECOND LAWSUIT CHALLENGES
THE RESTORATION OF FOREIGN COPYRIGHTS UNDER THE URUGUAY ROUND
A second lawsuit, Golan
v. Ashcroft, No. 01-B-1854, has been filed in the Federal District Court in
Denver (10th Circuit). If the Supreme Court had declined to hear Eldred,
a second challenge would have been made in a different circuit. Professors Larry Lessig and Edward Lee of Stanford and Professors
Jonathan Zittrain and Charles Nesson of Harvard are representing the plaintiffs,
along with the Denver law firm of Wheeler Trigg & Kennedy. More
information is available at the Golan
in Golan v. Ashcroft, filed Sept. 19, 2001 (pdf format)
Motion to Dismiss in Golan v. Ashcroft (pdf (format)
Memorandum in Support of Motion to Dismiss
Table of Authorities in Support of Motion to Dismiss
Opposition to Government Motion to Dismiss (pdf format)
Reply to Plaintiff's Opposition (pdf format)
dated March 15, 2004, dismissing the challenge in Golan
based on a life+70 term as being essentially perpetual but allowing
claims based on the URAA to go forward.
See Press Release, Effort
to Reclaim Public Domain Scores Victory, March 16, 2004. For
details on Golan, see Challenge to
Constitutionality, and in particular the discussion
of Golan, or the Golan
Golan goes further than Eldred, because it also
challenges the constitutionality RESTORATION of copyrights that
Congress purported to effect in 1994 in the Uruguay Round Agreements
Act. Section 514 of that Act (codified as section
104A of the Copyright Act) restored copyright to all foreign
works that has gone into the public domain due to noncompliance with
the formalities of U.S. law as it existed until 1992 (publication
without copyright notice, failure to renew, or failure to comply with
the requirement that certain books be physically printed in the United
States). The provision under attack is. Golan was on
hold until the Supreme Court issued a decision in Eldred. Section
104A actually removes material from the public domain, contrary to
express language (but not holdings) of U.S. Supreme Court cases.
In that sense, it is a stronger case than Eldred. The
district court ruled on March 15, 2004, that Eldred did not
foreclose the claim that the Intellectual Property Clause prohibits
congressional removal of works from the public domain. It also
allowed claims based on the First Amendment and on substantive due
process to go forward. On the
other hand, from a policy point of view, Section 104A is much more carefully tailored to meet a
well defined problem, namely, apparent noncompliance (without section
with our obligations under the Berne Convention. The URAA-supplied
provision covers only
the minimum that Berne (apparently) requires, namely, foreign
works. That also means there is much less suspicion that rent
seeking was an important factor in its adoption by Congress.
Therefore, section 104A is easier to defend on policy grounds than the
Sonny Bono Act that the Court has now affirmed.
THIRD LAWSUIT CHALLENGES THE RESTORATION
OF FOREIGN COPYRIGHTS UNDER THE URUGUAY ROUND
Music Library, Inc. v. Ashcroft, the District Court for the District of
Columbia on June 19, 2004, rejected the arguments of a music
publishing company and a film preservation company that the
restoration of foreign copyrights under the Uruguay Round Agreements
Act was unconstitutional. The court concluded that there is
nothing to stop Congress from removing works from the public domain,
distinguishing the Supreme Court's dictum to the contrary in Graham
v. John Deere Co., 383 U.S. 1 (1966) on the ground that Graham dealt
with patents and not copyrights. The court relied heavily on the
Supreme Court's Eldred decision, upholding the
constitutionality of the Sonny Bono Act.
The Basic Argument against Term
arguments in this challenge to the Sonny Bono Act? If the term extension is constitutional, it must
fulfill a public purpose ("promote the progress of science"). However,
extending the term for existing works inhibits, rather than promotes, the dissemination of
knowledge and culture because no creation incentive is necessary for works that have
already been created and made available to the public. Even extending the term for
new works fails to promote the progress of science, because the terms established by the
1976 Act were already so long that longer terms cannot provide any measurable increase in
creation incentives. See the discussion of incentives from a longer term in the Statement of Copyright and Intellectual Property Law
Professors submitted to Congress in opposition to the bills. See also the Affidavit of Dean Hal Varian, filed on behalf
of Plaintiffs in the constitutional challenge (pdf format), which uses present value
analysis to conclude that the economic value of term extension to current is
"tiny" and that the extra economic incentive for existing works is zero.
See also the economists
brief filed with the Supreme Court.
Justice Breyer was one of
only two dissenters in this fiasco. This may not be too
surprising given what he wrote in 1970 about the last
term extension. Professor Patry, too, normally a strong
copyright protectionist, argued in
The Failure of the American Copyright System: Protecting the Idle Rich, 72 Notre Dame L. Rev. 907 (1997),
that extension benefits distributors and descendants of long-deceased authors rather than
authors themselves, contrary to the constitutional command that authors have the
exclusive rights of copyright.
END RESULT OF THE SUPREME COURT'S DECISION IN ELDRED IS THAT
ESSENTIALLY NOTHING WILL GO INTO THE PUBLIC DOMAIN BETWEEN NOW
AND DEC. 31, 2018! (And even that assumes there will
be no further extensions before that date.)
Other Materials on the Constitutionality of
Copyright Term Extension
See also Commentary on
Copyright Term Extension and Important Media
Coverage of Term Extension
Patrick Haggarty, The
Constitutionality of the Sonny Bono Copyright Term Extension Act of
1998, 70 U. Cincinnati L. Rev. 651 (2002), argues that
retroactive extension violates the IP Clause of the Constitution and
that the CTEA violates the First Amendment.
Dennis Harney, Mickey
Mousing the Copyright Clause of the U.S. Constitution, 27 U.
Dayton L. Rev. 291 (2002), argues that the D.C. Circuit erred in
concluding that the so-called "preamble" of the IP Clause in
the Constitution (Congress has the power "to promote the Progress
of Science") does not limit substantive action by Congress under
Eldred v. Ashcroft: Intellectual
Property, Congressional Power and the Constitution, sponsored
by the Loyola University (Los Angeles) Law Review, contains a number
of articles pro and con on the constitutionality of copyright term
extension. Contributors are Erwin Chemerinsky, Dan Coenen &
Paul Heald, Richard Epstein, Wendy Gordon, Dennis Karjala, Scott
Martin, Shira Perlmutter, Malla Pollack, Ed Samuels, and Avishalom Tor
& Dotan Oliar.
and Copyright Term Extension and the Constitution: A Historical
Perspective, by Tyler T. Ochoa, 49 J. Copyr. Soc'y USA 19 (2002). A careful and
thorough legal analysis of the long history of
congressional extensions of patents and copyrights. Professor Ochoa concludes that the D.C.
Circuit's decision in Eldred, that Congress
may extend a patent or copyright for any finite term it chooses, does violence
to the language and purpose of the Copyright and Patent Clause Clause, as it
has been interpreted by the U.S. Supreme Court. He also concludes that
the long history of private patent extensions, too, does not justify the
indiscriminate 20-year extension effected by the CTEA, although they might
support extensions in more limited circumstances to vindicate legitimate
expectation interests of rightholders who did not enjoy their full term because
of circumstances beyond their control. Aimed at
a legal audience, but well worth study!
Miller, IP Bar Shutdown - No
Amicus in Eldred Says ABA Governors, LawMeme, April 16, 2002.
Mr. Miller demolishes the arguments of attorney Morton David
Goldberg in support of the owners of old copyrights and the Sonny Bono
Act. He also reports on the sensible and proper refusal of the ABA Board
of Governors to approve the filing of an amicus brief at the Supreme Court in
support of those special interests.
H. Davis, Extending
Copyright and the Constitution: "Have I Stayed Too
Long?", 52 Fla. L. Rev. 989 (2000), argues on the basis of
John Hart Ely's theory of judicial review, that the courts have a duty
to reevaluate legislation adopted through a flawed or
nonrepresentative legislative process. Retroactive term
extension was adopted under the smokescreen of prospective term
extension (for which there might be more justification for
congressional action but for which there was no lobby of any
kind). Consequently, the Court should find the retroactive term
extension unconstitutional, and should find it inseverable from
prospective term extension. Congress may take another crack at
the latter if it chooses. (WordPerfect format)
Ray Patterson, Eldred
v. Reno: An Example of the Law of Unintended Consequences, 8 J.
Intell. Prop. L. 223 (2001). Professor Patterson asks how the
D.C. Circuit could come to a decision so at odds with fundamental the
copyright policy of promoting learning through public access to
information (pdf format).
Note, Christina N.
Gifford, THE SONNY BONO COPYRIGHT TERM EXTENSION
30 U. Mem. L. Rev. 363 (2000)(rtf). Detailed history of U.S.
copyright and the term extension legislation, including who supported
it and who opposed it, with analysis of the reasoning on both sides.
Constitutionality of Copyright Term Extension: How Long Is Too
Long?, Cardozo University Arts & Entertainment Law Journal,
2000. Professor William Patry moderates presentations by
Professors Wendy Gordon, Arthur Miller, and Jane Ginsburg on the
constitutionality of the Sonny Bono Copyright Term Extension Act.
the Patent and Copyright Term: Term Limits and the
Intellectual Property Clause, by Edward C. Walterscheid, 7 Journal of Intellectual Property Law
315 (2000). Professor Waltersheid provides a careful and
detailed analysis of the history and meaning of the congressional
power "to promote the progress of science and useful
arts." He concludes, " If under the Intellectual Property
Clause there is indeed a balance between the public interest and the interest
of individual authors and inventors, as both the Supreme Court and Congress
state there is, then the time has come for the courts to delineate the
constitutional factors which affect such a balance and to determine whether
the present copyright term is in accord with those factors."
All that Glitters . . . .
Copyright, Censorship, and the Constitution, by Kenton Abel and Samuel Trosow.
This article looks at copyright as an instrument of private censorship.
The Framers of the Constitution recognized the danger of a
copyright monopoly and explicitly created a fundamental safety valve in the express
constitutional limitation on the duration of the monopoly. However broad copyright
interests may be, they are ultimately limited in time in favor of the Intellectual Commons, the ultimate destination
under the Constitution of all copyright-protected works. The authors conclude that
upholding the constitutionality of retroactive copyright term extensions is
unconstitutional as inimical to innovation by inhibiting access to ideas without any
The Unconstitutionality of the Copyright Term
Extension Act of 1998 by Timothy R. Phillips. In this very thoroughly researched
brief in supporting the constitutional challenge to the CTEA, Mr. Phillips shows what the
Founding Fathers, suspicious of monopoly, meant by "limited times" in the
constitutional empowerment clause. He also reviews Supreme Court and lower court
jurisprudence interpreting the constitutional language. He argues that the CTEA is
unconstitutional because the extended term exceeds any reasonable interpretation of the
"limited times" provision of the Constitution and because its effect is to
discourage, rather than promote, the dissemination of knowledge and culture. He also
argues that the CTEA does nothing to encourage the arts, provides nothing to authors (the
intended constitutional beneficiaries), and was motivated by a desire to establish
perpetual copyright. WELL WORTH READING! TAKE A
Copyright Giveaway, Rule of Law column in the Wall Street Journal of December
21, 1998, by University of Chicago law professor Richard A. Epstein. Here Professor
Epstein argues that the recent term extension legislation is unconstitutional as applied
to works already in existence, on the ground that it gives public property without
compensation to private parties. Also contained here are two letters later published in
the WSJ in response to Professor Epstein's article.
Duration Extension and the Dark Heart of Copyright, an article by Professor Marci
Hamilton arguing that although the Supreme Court is appropriately reluctant to substitute
its policy judgments for those of Congress, it has an
obligation to effect the means by which the Constitution divides power within the
government and, under the Copyright Clause, within the society. The repeated
victories of the copyright industry's lobbying efforts at the expense of individual
authors require the Court "to read the Copyright Clause with fresh attention and
For Limited Times?
Making Rich Kids Richer Via the Copyright Term Extension Act of 1996 by Joseph A.
Lavigne, 73 University of Detroit Mercy Law Review, No. 2, Winter 1996, pages 311-360,
argues (click here to get
directly to the argument) that term extension fails to promote the progress of science
because the additional 20 years cannot supply any noticeable increase in creation
incentives even for new works; it obviously can supply no incentives to create works
already in existence. He further argues that the "for limited times"
provision means a time no longer than necessary to ensure the production of creative works
and that the extended terms do not meet this criterion.