On June 6, the Eagle Forum Legal and Education Fund filed an amicus brief with the D.C. Circuit in support of our claim that the Copyright Term Extension Act (CTEA) is unconstitutional. (For the full text of the brief, go to <http://eon.law.harvard.edu/openlaw/eldredvreno/eagleforum-amicus.pdf>) Eagle Forum, an organization working to "enforce constitutional provisions on an encroaching federal government," argues that the retroactive provisions of the CTEA unconstitutionally extend federal authority beyond the constraints of the First Amendment and the "enumerated bounds" of the Copyright Clause.

Eagle Forum's brief first criticizes the district court's conclusion that Congress is not limited by the introductory language of the Copyright Clause. Eagle Forum considers that language -- "to promote..." -- to be as much a limit as it is an affirmative grant of power. According to the "first principles" of constitutional interpretation, the enumeration of any power "presupposes something not enumerated." In other words, language explicitly defining a congressional power necessarily delimits that power. The introductory language of the Copyright Clause thus creates a "promote requirement," not an unlimited congressional copyright authority.

The amicus brief goes on to consider whether the CTEA meets that requirement by promoting the progress of science or the useful arts. The government argues that the CTEA promotes this progress by: 1) harmonizing U.S. copyright law with the law of Europe; 2) encouraging the preservation of at-risk materials; and 3) providing more financial resources for potential authors. Eagle Forum rejects each of these. First, there is no evidence that disharmony with European law has slowed American progress. Second, mere preservation of at-risk works fails to promote progress because progress involves "forward movement," not just "stasis and avoidance of decay." Finally, making additional financial resources retroactively available to those who own existing copyrights does not encourage creativity or progress; the connection between the CTEA's financial windfall and the original act of creation is simply "too attenuated and speculative."

Eagle Forum next finds fault with the district court's conclusion that any fixed term satisfies the "limited times" requirement of the Copyright Clause. The court's understanding of this requirement would in effect allow Congress to extend copyright terms ad infinitum so long as each extension is for a set period. This reasoning deprives the "limited times" requirement of all meaning. In order to avoid this result, Eagle Forum suggests a general rule that the copyright term for each work or expression can be set only once. This approach reads "limited time[s]" as singular with regard to each copyright, in agreement with the preceding language referring to the singular "exclusive right." This understanding of the "limited times" requirement would prevent Congress from hiding what is essentially an unlimited copyright in repeated 20-year extensions.

Eagle Forum joins our rejection of the district court's First Amendment analysis. By misinterpreting precedent, the court created a new "categorical rule excepting copyrights of 'expression' from First Amendment scrutiny." Yet traditional First Amendment analysis governs expression as well as ideas. The Circuit Court should apply that analysis to balance the interests at stake here. Eagle Forum argues that a proper balancing reveals no important (as opposed to merely valid) interests served by the CTEA's retroactive term extensions.


In preparation for oral arguments in the Eldred v. Reno case on October 5, we encourage everyone to contribute their thoughts on the case at <

Thanks for your commitment to the public domain,

Chris Babbitt and Claire Prestel