Eldred v. Reno Update

The Government filed its response brief with the D.C. Circuit this week, responding to our arguments by characterizing the CTEA as the logical next step in a history of copyright term extensions and by arguing that balancing the public’s and coypright holders’ interests is the province of Congress, not the courts. With these points as background, the Government’s brief goes on to argue that so long as the means adopted by Congress to promote the arts and sciences bear a "rational connection" to that end, the courts have no choice but to affirm the CTEA’s constitutionality. The Government’s full brief is available in both html <http://cyber.law.harvard.edu/works/lessig/eldred/us_resp/us.doc.html> and pdf <http://eon.law.havard.edu/openlaw/eldredvreno/us.pdf> formats. A summary of the brief can be found below.

The government argues that the goal of ensuring a "fair return" to the owners of subsisting copyrights is sufficient to justify the retroactive extension of copyright terms. By extending the copyright term to life plus 70 years, the CTEA attempts to achieve that goal by ensuring that copyright protection benefits the author and his or her children for their entire lives. This retroactive extension also creates an incentive to create new works by establishing "a system in which the Government keeps its promises" (here, the "promise" that an author’s children will be lifetime beneficiaries of his or her creativity). Further justification is found in the changed circumstances of the digital age and commercial globalization, both of which have extended the marketable life of copyrighted material. The Government believes that "a system that will atempt to secure authors’ rights . . . in changing circumstances" will provide incentive for future creative efforts. As a rational response to changes in the "traditional indicia" used by Congress in choosing a copyright term, the CTEA "provides no occasion for the Court to speculate upon whether or when a term extension, lacking such rational and traditional predicates, would become constructively unlimited."

With regard to corporate works, the Government maintains that the additional income stream from a retroactive term extension would "stimulate . . . companies to produce new works of art." This additional income could also be used to restore decaying works and transfer them to digital media - a process the Government suggests would not occur without copyright extensions. The Government finds an additional basis for the CTEA in its attempt to harmonize U.S. and European copyright law and provide additional protection for American authors abroad.

In response to our claim that the CTEA violates the originality requirement of the Copyright Clause, the Government argues that originality determines eligibility for a new copyright but simply isn’t relevant to the question of extending existing copyrights. The brief dismisses our "limited Times" argument by pointing to a history of short term extensions and by suggesting that those extensions are exactly the kind of balancing between public and private ownership that is the responsibility of Congress.

Finally, the Government dismisses our First Amendment claim by relying heavily on the district court’s decision that there is no First Amendment right to use the copyrighted works of others because the idea/expression distinction adequately protects speech. In addition, the Government argues that having suffered no injury as yet, we lack standing to claim a First Amendment violation in court. The Government also suggests that our First Amendment argument fails to meaningfully distinguish this case from United Video, Inc. v. FCC (identified as controlling by the district court).


With the Government’s appellate brief now in our hands, participation in OpenLaw forum will now be especially helpful. By drawing on the collective resources of the online community, we hope to both illustrate the widespread support for the public domain and draw on the brain power of our readers to counter the Government’s arguments. The html <http://cyber.law.harvard.edu/works/lessig/eldred/us_resp/us.doc.html> and pdf <http://eon.law.harvard.edu/openlaw/eldredvreno/us.pdf> copies of the brief are both page and line-numbered to facilitate comment. Please post your ideas for rebuttal arguments at <http://eon.law.harvard.edu/openlaw/eldredvreno/>.

Thanks for your continued interest in the case and your support for the public domain!

Chris Babbitt & Claire Prestel