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).  

     For background 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.   They include:

Second Amended Complaint, filed June 24, 1999

Government's Motion for Judgment on the Pleadings, filed June 25, 1999

Amici Brief, 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 Gov’ts 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 interests claimed. 

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.

Decision of the D.C. Circuit panel dated July 13, 2001, 255 F.3d 849 (D.C. Cir 2001), denying plaintiff's petition for rehearing.

Petition of Plaintiffs dated April 2, 2001, for rehearing en banc by all judges on the DC Circuit (pdf format)

Petition of Plaintiffs dated Oct. 11, 2001, for a hearing by the United States Supreme Court (pdf format)

Response of the Government dated December 2001 opposing a hearing by the Supreme Court (pdf format)

Reply of Plaintiffs to Government's Response (pdf format)

Amicus Brief of Copyright Law Professors in support of plaintiffs' petition for a writ of certiorari (pdf format)

Amicus 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.

United States Supreme Court grants certiorari, Feb. 19, 2001 (32 USLW 3292).  Certiorari 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.

Majority opinion of the United States Supreme Court, Jan. 15, 22003, rejecting the challenge.  Dissenting opinions came from Justices Breyer and Stevens.

CTEA 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 regimes.

SECOND LAWSUIT CHALLENGES THE RESTORATION OF FOREIGN COPYRIGHTS UNDER THE URUGUAY ROUND AGREEMENTS ACT

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 v. Ashcroft web site.

Complaint in Golan v. Ashcroft, filed Sept. 19, 2001 (pdf format)

Government Motion to Dismiss in Golan v. Ashcroft (pdf (format)

Formal Motion
Memorandum in Support of Motion to Dismiss
Table of Authorities in Support of Motion to Dismiss

Plaintiff's Opposition to Government Motion to Dismiss (pdf format)

Government Reply to Plaintiff's Opposition (pdf format)

Decision 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 v. Ashcroft web site.

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 104A) 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 AGREEMENTS ACT

          In Luck's 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 Extension

     What were the 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.  

     THE 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 that power.

Symposium,  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.

Patent 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!

Ernest 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.

Michael 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)

L. 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 ACT, 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.

Debate, The 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.

Defining 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 countervailing benefit.

      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 LOOK!

      Congress's 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. 

      Copyright 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 historical understanding."

     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.