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What the Washington Post Doesn't Understand About Eldred
Posted by Ernest Miller on Wednesday, October 16 @ 22:11:24 EDT Copyright
The Washington Post editorial board finally weighs in on Eldred v. Ashcroft and concludes that the while the Sonny Bono Copyright Term Extension Act [PDF] is bad law, there is not an easy option for the US Supreme Court to declare the law unconstitutional (Copyrights and Wrongs):
If the court means to undo a decision that the Constitution so clearly seems to entrust to Congress, it will need to do more than make the subjective judgment that Congress has protected copyrights for too long, for such judgments are precisely the sort that are best left to legislatures. To strike this law down with legitimacy, the court will somehow need to articulate a test that distinguishes between a lengthy limited term and one that is, in effect, no longer "promot[ing] the progress of science." If it cannot do this persuasively, then it is the wrong agent of the change in copyright law that is clearly necessary.
Somehow articulate a test? Do more than make a subjective judgement? How about "retroactive extensions are unconstitutional." A nice, bright line, objective test. Doesn't get much more straightforward than that. Moreover, there are many compelling structural, literal and other arguments to support such a reading of the constitution. Does the Washington Post think this case is about prospective copyright?
 
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· Washington Post
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