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Features: An Essay on Eldred
Posted by Raul Ruiz on Monday, December 16 @ 19:21:13 EST Copyright

Professor Robert Dunne, a lecturer in the Computer Science department at Yale, regularly teaches a seminar titled "The Legal Implications of Computing Technology." As a final project students are required to write a paper on a subject pertaining to law and technology. Benjamin Gross, a Yale senior and my roommate, has chosen to write on the Eldred case and provides us with his interpretation of the issues at hand as well as his opinion on how the Supreme Court will rule. The contents of his paper are below.



In his 1923 movie, Safety Last, Harold Lloyd dangled from the hands of a clock which progressively ticked from quarter after to half past, threatening to drop him at any moment into the bustling traffic below. The scene became one of the iconic images of the silent film era, but in 1998, it gained a symbolic significance as well, as time began to run out for Harold Lloyd. . .or at least the copyright for his film. Under the provisions of the Copyright Act of 1976, Safety Last was slated to enter into the public domain after a period of nearly seventy-five years, along with other famous films, like Lon Chaney’s Hunchback of Notre Dame, and works of literature, like Kahlil Gibran’s The Prophet. Only Congressional intervention in 1998, in the form of the Sonny Bono Copyright Term Extension Act (CTEA), precluded the entry of these and similar works into the public domain by extending the length of both existing and future copyright terms an additional twenty years.

Despite its stated purpose to provide fair legal protection to creative works and thereby encourage distribution and restoration of older works, the CTEA sparked outcry among a diverse group of individuals and organizations that relied upon the continued growth of the public domain to pursue their own creative and business endeavors. Foremost among these was Eric Eldred, an online publisher whose website is an online library of sorts, containing modified electronic copies of public domain works of literature. In January 1999, Eldred served as lead petitioner in a challenge to the CTEA, “arguing that [both] the retroactive aspect of CTEA exceeded Congress’s power under the Copyright Clause, and that the retroactive and prospective aspects of CTEA violated the Free Speech and Press Clauses of the First Amendment.” Although the D.C. District Court and Court of Appeals rejected the arguments of Eldred and lead counsel Lawrence Lessing, the case quickly became established as the most important challenge to federal copyright law in recent memory, and was granted certiorari in February 2002. By forcing a reconsideration of the very basis of copyright law itself, the results of Eldred’s challenge will affect the full spectrum of creative expression, from literature to software, with success forcing a radical reconsideration of the nature of the public domain. After considering the points presented in both the petitioners’ and respondents’ briefs however, along with the oral arguments presented before the Supreme Court last October, one concludes that although Lessig presents an eloquently framed and novel approach to the question of copyright extension, the Copyright Term Extension Act will not be immediately deemed unconstitutional as a result of either his Copyright Clause or First Amendment arguments.

What is a Limited Time Anyway?: Copyright Clause Arguments Against the CTEA

The petitioners’ primary argument in Eldred v. Ashcroft is that the CTEA’s retroactive extension of existing copyright terms exceeds Congress’s Power under the Copyright Clause of Article I, §8 of the U.S. Constitution. This passage is the basis of all copyright law and grants Congress the authority “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.” Lessig and the petitioners take issue with the Appeals Court’s implication that as an enumerated power, the constitutionally sanctioned ability to grant copyrights also lends unbounded authority to the legislature. “The Court of Appeals adopted a reading of the term ‘limited Times’ that permits Congress to evade the Framers’ clear intent that copyright terms be fixed, and that after a ‘short interval,’ creative works pass into the public domain ‘without restraint.’” Lessig cites Chief Justice Rehnquist’s earlier holding in U.S. v. Lopez that the enumerated powers “have judicially enforceable outer limits,” and calls for the Court to identify the limit of Congress’s ability to issue copyrights, particularly to preexistent works. Ultimately, he argues, it is an issue of “whether extensions for works already created prevents copyrights from being for ‘limited Times,’ and exceeds a power to ‘promote the Progress of Science.’”

The petitioners’ approach to the Copyright Clause arguments is in many ways quite strict, focusing on a close textual analysis of the Framers’ original intent. Contrasting the clause with those outlining other enumerated powers, Lessig notes its unique position as “the only clause in Article I that describes both the objective which Congress may seek and the means to achieve it.” Although not suggesting that the copyright term should be either fixed or certain, the petitioners contend that any legislated term must remain “limited” in order to correspond to the meaning of the Clause, and it is on this point that they take issue with the CTEA. Specifically, the petitioners argue that the CTEA’s retroactive extension of copyrights is a violation of the “limited Times” requirement because “it is (a) not a ‘limited Time,’ (b) not a ‘limited Time’ that ‘promotes the Progress of Science,’ and (c) not compatible with the quid pro quo requirement of the Copyright Clause.” In their view, the repeated, retroactive extension of copyrights, eleven times in the past forty years, has fundamentally undermined any term limitations to the detriment of the public domain. As the Court ruled in Bonito Boats v. Thunder Craft Boats, Congress may not “remove existent knowledge from the public domain.” Furthermore, such term extensions do not result in progress or the creation of a new or original work (as outlined in Feist v. Rural), and thereby do not merit the continued grant of exclusive rights. “Whatever material benefit might flow to the author or his heirs or publisher from the extension of this exclusive right, Congress has not conditioned that grant upon a gain by the public.” The granting of such rights is also construed as antithetical to the views of the Framers, who hoped to avoid publisher monopolies like those seen in England the century before by establishing “a mechanism for decentralizing and controlling power.”

Writing on behalf of the respondent, Solicitor General Theodore Olson opposes Lessig’s assertion that the “limited Times” requirement precludes retroactive copyright extension, which he claims is justified on the basis of the “Necessary and Proper” clause in Article I, §8. Olson attacks the crux of Lessig’s Copyright Clause argument, labeling the characterization of application of new terms to subsisting works as “retroactive” as inaccurate since they only govern the legal status of future copying not copying in the past. He similarly rejects any claim that a term is unlimited if it can be increased at a later point in time and dismisses arguments that the evolution of the Clause itself suggests the Framers intended for a single, inalterable, limited time. Instead, he presents his own analysis of the history of copyright legislation, noting that Congress “has never provided for an inflexibly ‘fixed’ or ‘certain’ copyright term,” and in all cases from 1790 onward, “has consistently applied new copyright terms to subsisting works.” Although the petitioners claim that the initial 1790 statute was intended to establish new federal standards to replace those held in states rather than extend preexisting copyrights, they fail to explain the evenhanded application of the 1831, 1909, or 1976 Copyright Acts to both existent and future works. Olson also cites a wide range of Supreme Court judgments upholding extensions of individual copyrights (Evans v. Robinson, Blanchard v. Sprague, etc.) and notes that many of these extensions were signed into law by such prominent Framers as Jefferson and Madison themselves. “With respect to selecting and modifying statutorily limited Times,’” he notes, “the Framers placed their faith in the people’s representatives by generally assigning Congress ‘the task of defining the scope of the limited monopoly that should be granted to authors or inventors.”

Olson’s other major point of contention centers around the petitioners’ belief that the exact definition of “limited Times” must be determined in the context of the Copyright Clause’s Preamble (“To promote the Progress of Science and Useful Arts”), which they had already conceded was not an independently enforceable limit on Congress’s powers. Quoting constitutional scholar Melville Nimmer, he argues that the preamble “must be read largely...indicating the purpose of the power, but not the limitation of its exercise.” The petitioners, in contrast, latch on to the originality requirement, citing Feist and Bonito Boats Inc. among others, in an attempt to prove extended terms for existent works are invalid due to a lack of progress. However, in the case of McKlurg v. Kingsland, the Supreme Court refuted this idea as well as Lessig’s quid pro quo argument by bestowing increased legal protection for a previously granted patent. The CTEA does not protect works lacking originality, it “merely applies a new copyright term to ‘original’ works that properly qualified for copyright in the first instance.” Such applications can be fully justified under the auspices of the “necessary and proper” clause as falling entirely under Congressional authority.

Far from inhibiting progress, the CTEA builds upon a longstanding precedent of providing authors with the benefit of subsequent enactments, increases incentives for restoration and dissemination of works, and harmonizes with accepted international copyright standards. Ultimately, Olson notes, the petitioners’ concerns over perpetual copyright terms are unjustified. The extension is a legitimate exercise of Congressional power meant merely to account for changing demographic, economic, and technological factors into account, and has a firm basis in precedent. “Photocopying and digital media have lowered copying costs, new markets and media have increased the value and commercial life of works; and losses due to piracy have increased. Under traditional copyright policy, each of those changes tends to justify a longer term.”

The Broken Engine of Free Expression?: The CTEA and First Amendment Issues

The other major prong of Eldred’s challenge of the CTEA is whether the retrospective and prospective extension of copyright terms qualifies as a content neutral restriction of speech which merits a higher level of judicial scrutiny. According to this interpretation, advanced by Lessig and the other petitioners, “barring the unauthorized use or dissemination of copyrighted works...regulates speech.” The level of restriction has only increased over time, expanding in scope to include not just publication and distribution, but also issues surrounding public display and the creation of derivative works. And as Lessig points out, “because of the emergence of the Internet...copyright law will increasingly control ordinary uses of creative content in activities that before the Internet were not even remotely within the reach of copyright.”

In approaching the CTEA as a First Amendment restriction of speech, the petitioners first needed to overcome the Appeals Court claim that Congress’s decision to place works under copyright “obviates further inquiry under the First Amendment.” The court based their decision on the Supreme Court’s ruling in Harper & Row Publishers, Inc. v. Nation Enterprises, which centered around a magazine’s unsanctioned publication of a section of Gerald Ford’s autobiography. Justice O’Connor, writing for the majority, declined to create a “‘compulsory license’ permitting unfettered access to the unpublished copyrighted expression of public figures.” Copyright law, she wrote, was intended to be “an engine of free expression” by creating an incentive to produce creative work. “Absent such protection, there would be little incentive to create or profit in financing such memoirs.” Given that copyrights protect the expression of ideas rather than the ideas themselves and the existence of a fair use exception, the Court found no reason to delimit copyright protections any further. The Appeals Court interpreted this refusal as a general First Amendment bar to copyright analysis, but Lessig argues that nothing in Harper & Row “suggests that Congress could evade First Amendment review should it amend the statute to eliminate the idea/expression distinction or to constrict the scope of fair use.” The CTEA, by forestalling the timely entry of works into the public domain, does the latter and runs counter to the original Framers’ original intent.

In order to withstand First Amendment review, the CTEA must be shown to advance an important government interest without burdening substantially more speech than necessary to further those interests. Lessig argues that the law fails on both counts. Specifically, the implementation of retrospective copyright extension fails to promote further speech, since it is often granted long after the moment of creation. Instead, through the restriction of speech, Congress effectively grants a windfall to authors and their heirs “independent of any claimed incentive to create.” Restricting the general public’s free speech in this fashion without expecting any further incentive to create, in Lessig’s view, is not sanctioned under the First Amendment, regardless of potential benefits like harmonization with EU copyright standards. Even assuming the CTEA would encourage the distribution and restoration of old films, an objective cited in the Court of Appeals, such an objective would not merit the extension of the CTEA to all copyrighted materials and would be unlikely to accomplish its stated goal. In failing to base extensions upon a quid pro quo arrangement calling for new creativity, the CTEA provides minimal incentives and ultimately “serves no function except to block access to creative works.”

Olson’s responds to Lessig’s First Amendment argument with a high degree of skepticism. He repeatedly characterizes the petitioners as “public domain exploiters,” and argues that not only did Congress have a set of legitimate objectives in the passage of the CTEA, but that the act itself was fully consistent with the First Amendment. He also fully dismisses the necessity of holding the CTEA to intermediate First Amendment scrutiny. “The First Amendment impact of copyright restrictions is exceedingly modest, since such restrictions mainly bar commercial competitors only from exploiting an author’s own creative expression.” Rather than defending free speech interests, Olson asserts the petitioners are advocating “a novel constitutional right to exploit others’ creative expression indiscriminately during the proprietary exclusive term established by Congress.” Their approach to the CTEA would necessitate the “judicial balkanization” of copyright laws as the courts determined whether laws against copying, publishing, and producing derivative works upheld First Amendment review standards for all types of creative expression.

The petitioners’ interpretation of the Harper & Row case is similarly flawed. Rather than acceding to the Court’s judgment that the inherent safeguards within the copyright system eliminate the need for further judicial intervention, the petitioners argue the copyright statutes are inherently flawed from the outset. Yet, Olson argues, the CTEA does nothing to limit fair use, eliminate the idea/expression dichotomy, or create a content based regulation of speech. It is therefore exempt from attack on First Amendment grounds. The petitioners attempt to further distinguish Harper & Row by labeling the idea/expression dichotomy and fair use doctrines as irrelevant to the First Amendment guarantee that works will pass into the public domain in a timely fashion. They fail however to adequately explain the existence of a First Amendment right to exploit work during an extended term but not during its original one, and ignore the Court’s rejection of the infringer’s assertion of a similar time-sensitive right in Harper & Row. The Court’s ruling in that case confirmed the government’s position that the CTEA, like all earlier Copyright Acts, sufficiently preserves First Amendment values and does not merit a heightened level of judicial scrutiny.

Despite limiting the rate at which works enter the public domain, Olson argues the CTEA does not restrict speech in an impermissible fashion, but instead serves to perpetuate and enhance public discourse. “By continuing Congress’s longstanding policies of ‘fair treatment’ and ensuring ‘fair returns,’ the CTEA seeks to preserve an environment that encourages the creation of new works.” Rather than limiting public access to knowledge and providing benefits solely to copyright holders, the CTEA encourages the further publication and dissemination of creative works. Copyright holders will “profit from their creative property to the extent that they succeed in making the works publicly available. Absent some distribution effort, no return can be garnered.” Despite claims from the petitioners’ amici curiae to the contrary, there is a higher likelihood, for example, that film companies to restore and distribute otherwise forgotten films. Efforts such as these and attempts to harmonize with EU copyright protection more than justify the government’s passage of term extensions. Thus, although intermediate scrutiny would not be appropriate to the analysis here, Olson implies that in passing the CTEA, the government achieved several narrowly tailored objectives without overly burdening free speech. Even if Lessig’s argument held true, the CTEA could hold up to closer scrutiny on its own merits.

The Oral Arguments

Having considered the briefs summarized above, the Supreme Court took the opportunity during oral arguments to force Lessig and Olson to clarify both their Copyright Clause and First Amendment arguments regarding the CTEA. As Chief Justice Rehnquist noted early in the discussion, this case marked an unprecedented challenge to copyright legislation. Past copyright extensions “were never challenged...perhaps most people, and perhaps everybody felt that there was no basis for challenging them.” Still, the Court’s remained receptive to the petitioners’ arguments, while simultaneously gauging the full ramifications of either of their major points. As no ruling has yet been issued, the Court’s line of inquiry provides the single best present indicator as to what issues will be under consideration during the deliberations. An examination of the Court’s questioning of both Lessig and Olson reveals the Court’s lingering suspicion towards the petitioners’ First Amendment claim. At the same time however, the Justices demonstrate a level of open-mindedness to Lessig’s Copyright Clause argument and skepticism towards the government’s claims of the CTEA’s benefit to the general public.

Following his opening statement, Lessig successfully countered the Court’s questions as to the potential ramifications of undermining two centuries worth of precedent in the area of copyright legislation, emphasizing the necessity of limits to Congressional power. Responding to Justices Rehnquist and O’Connor’s questions as to what distinguished the CTEA from previous term extensions, he argued that circumstances had changed to the point where the proposed extension would effect much more than a small community of commercial publishers. “Now for the first time, the scope of this exclusive right has expanded because of the changed technology of the Internet to reach an extraordinarily broad range of creativity that would never have been imagined before.” When Judge Souter asked why the petitioners argued for a necessary causal connection between the term extension and the promotion of progress rather than a general scheme to promote progress, Lessig noted that without such a reading, there would be “no limit to the ability of Congress to create extended terms.” In pursuing this argument, Lessig referred both indirectly and directly to the Court’s holding in Lopez, and subsequent comments from several justices suggest that his argument was effective. Most notably, Justice O’Connor appears to have accepted Lessig’s argument, since it provided a Constitutional justification to limit the expansion of copyright protection. “[Copyright law] has expanded very much...and I can find a lot of fault with what Congress did here,” she noted. Chief Justice Rehnquist also seemed willing to accept Lessig’s line of reasoning, since it built upon his previous decision in Lopez. His questions even allowed Lessig to directly reference the case to reiterate that “there are limits to what the Congress can do under the Commerce Clause,” and suggest that similar limits should be applied to its power under the Copyright Clause.

Despite the relative success of Lessig’s Copyright Clause based arguments, the majority of his oral argument centered around the Court’s skepticism towards his First Amendment claims against the CTEA. Justice Kennedy argued that there was no empirical evidence to show that either the CTEA or the Copyright Act of 1976 restricted free speech, and Chief Justice Rehnquist derisively commented that Lessig and the petitioners wanted “the right to copy verbatim other people’s books.” Lessig reasserted the petitioners’ stance that those books would have legitimately entered into the public domain if not for an unconstitutional statute.

Perhaps the strongest challenge to Lessig’s First Amendment arguments came from Justice Ginsburg, who attempted to ascertain whether or not they were fully independent of his earlier Copyright Clause arguments and if so, how the line between prospective and retrospective works fit into the question. Given Congress’s decision to treat all authors equally regardless of when their works were created, she argued, retrospective extension would still accomplish that goal within the bounds of First Amendment scrutiny. Lessig’s contention that Congress makes a balancing test between public interest and the interest of the various authors and their estates was irrelevant. “Your First Amendment test is a stringent one,” Ginsburg noted. “You have to have an important purpose, and the means that you use is necessarily tied to that purpose. If you take that position, I don’t see how you make the retroactive-prospective line work.” Other justices took up this line of questioning, noting that the Copyright Clause itself provided Lessig’s sole means of devaluing the government’s claims of an important interest for First Amendment analysis. Without it, the question became whether “the promotion of useful art and so on [is] more important than the public domain, and can we say that that allows a distinction between 50 and 70 years?” Lessig attempted throughout his argument to demonstrate the existence of a separate, independent First Amendment argument, but the justices generally seemed to feel that his arguments held little weight. As Justice O’Connor noted, “if you say that the Copyright Clause is not violated, I don’t think there are examples where this Court has then resorted to First Amendment analysis to invalidate the same act.”

In contrast to Lessig’s oral arguments, when Olson approached the Court for questioning, there was very little discussion of the First Amendment issue. Instead, nearly every question centered around the potential benefits and harms of the CTEA and similar retrospective term extension laws to the general public and copyright holders in general. While Olson reiterated the argument from his brief that legislative precedent necessitated the even-handed application of term extensions to subsisting, he found it difficult to demonstrate the public benefit of such extensions. Furthermore, the Court attacked Olson’s claims that Congress’s decisions to extend copyright terms were justified as being “necessary and proper,” since the CTEA might effectively subvert both the Clause’s preambular need for progress as well as the “limited Times” requirement.

The single strongest arguments against copyright extension came from Justice Breyer, who built upon Justice Steven’s initial questions regarding early patent extension to ask if dissemination and promotion of existent works was the sole justification for extending their terms of protection. Upon receiving an affirmative answer, Breyer asked Olson a question earlier posed to Lessig regarding Congress’s hypothetical decision to grant Shakespeare, the Bible, and Ben Johnson copyrights to encourage further publication. However, where Lessig had answered that Congress would not have the right to extend copyrights to Shakespeare simply to encourage further publication of his plays, Olson was unable to provide a definite reason that prevented a work clearly in the public domain from being recopyrighted to perpetuate its further dissemination. Breyer immediately suggested that “this is an economic statute,” and proceeded to list of at least $7 billion worth of public harm from additional copyright royalties and cataloguing costs. “On the plus side, I see uniformity, dissemination, and–now, you tell me,” he challenged Olson.

Olson countered that providing an incentive to publish in the United States, as opposed to Europe was an additional point in favor of the CTEA, but Breyer responded that “the added incentive value to produce between life plus 50 and life plus 70, is zero...no difference between this and a perpetual copyright.” Such an extension, Justice O’Connor noted, would by no means guarantee incentives for further creativity. “If the overall purpose of the Copyright Clause is to encourage creative work, how some retroactive extension could possibly do that...one wonders what was in the minds of Congress.” Olson again argued that such questions remained for Congress to answer, not the Court, and that while a “functional equivalent of an unlimited time would violate the Copyright Clause,” the Framers chose not to include words like “unalterable” and “immutable” into the Constitution. Yet, Justice Scalia pointed out, “that’s precisely the argument being made by the petitioners...that a limited time which is extendable is the functionable, functional equivalent of an unlimited time.” Aside from establishing equity with future works under the “necessary and proper” clause as part of a general system inducing the creation, preservation, and distribution of works, Olson provided no valid reason to apply term extensions to past works. As Justice Scalia summed up, according to this argument, “the Copyright Clause justifies the extension for works not yet created, but it would be enormously inequitable to have other authors who put in the same amount of work get a lesser protection.”

Olson not only agreed with this contention, but also asserted that especially in light the increase in technological contributions to piracy, copyright holders “have some right to expect...an additional [copyright] grant, later on.” “But,” as Justice Ginsburg argued, “there has to be a limit, as you acknowledge. Perpetual copyright is not permitted. Who is the judge of when it becomes unlimited?” Olson believed that such matters are outside the Court’s purview in this case, but that regardless, Congress had that authority. The Court’s continued interest in economic harms and the lack of incentive for further creative innovation suggests that they had actually reached the same conclusion from two different approaches. Whether considering the balancing act between the economic benefits of the CTEA to the public interest and copyright holders, or arguing in the context of the Framers’ original intent, the CTEA apparently had the potential to infringe on the “limited Times” requirement of the Copyright Clause.

Judicial Deliberations and the Future of Eldred v. Ashcroft

Since arguments began at the District Court level against the CTEA, Eldred v. Ashcroft has become one of the most hotly debated legal cases in recent memory, with articles arguing both sides appearing in both legal journals and major newspapers. There have been countless moot courts and debates on the nature of copyright law and the exact mandate prescribed by the Founders in the Copyright Clause. This attention is certainly justified given the potential ramifications of the case on existing copyright legislation, and the Supreme Court demonstrated full awareness of these issues during the oral arguments. Eldred and Lessig’s attack on retrospective term extensions flies in the face of two centuries of copyright law, and the Court will be justifiably hesitant to overturn such a historically established precedent. At the same time however, Lessig’s arguments, especially in regard to setting outer limits to an enumerated power and preventing potential violations of the Copyright Clause carry a great deal of weight. Therefore, despite the Court’s apparent sympathy with many of Lessig’s ideas, it is more likely to maintain a conservative stance on the issue.

In regard to Lessig’s Copyright Clause arguments, he is likely to win over Justices Rehnquist, Kennedy, and Thomas, all of whom wrote opinions in Lopez, calling for a limitation to Congress’s enumerated powers. To argue that changed circumstances necessitated a reevaluation of powers granted under the Commerce Clause and not the Copyright Clause would be somewhat hypocritical, and Lessig adequately addressed the need for outer limits in his brief, which as the Court ruled in U.S. v. Morrison are “defined and limited...not solely as a matter of legislative grace.” Justice Stevens, Souter, and Breyer wrote dissents to the Lopez decision, but based on their pointed questions during oral arguments with Olson, they would likely oppose the CTEA as economically unnecessary and through its grant of retrospective copyrights, a means of sidestepping the “limited Times” requirement. Breyer’s line of questioning about the economic benefits and the potential social benefits of a retroactive extension appeared to have a particularly strong impact on the other justices. Justices O’Connor and Ginsburg pursued a similar line of reasoning in attacking Olson’s arguments, suggesting that the CTEA provided Congress with an overly broad mandate with no visible effect on the progress of science or the useful arts. Their questions to Lessig however, also demonstrated a concern with an overly hasty declaration of unconstitutionality.

The apparent strength of Lessig’s Copyright Clause arguments, and perhaps as importantly, Olson’s relatively weak defense of the government’s objectives in establishing retrospective term extensions, suggest the Court would be more willing to take a definite holding against the CTEA. Such assumptions however, discount the impact of the First Amendment prong of Lessig’s arguments in shaping the Court’s final decision on both issues. By transforming the petitioners’ challenge from a question of enumerated powers and how the CTEA would fulfill the Framers’ conception of copyright, Lessig added the element of intermediate scrutiny into the equation. As Justices Ginsburg and O’Connor noted however, considering copyright through the lens of First Amendment is unprecedented and unjustified based on Lessig’s over-reliance on Copyright Clause issues to prove his speech restriction argument. O’Connor will also likely disapprove of Lessig’s analysis of her holding in Harper v. Row that copyright laws contain adequate free speech protections. In short, by introducing the First Amendment to the case, Lessig weakened his overall position, and it is near certain based on his oral arguments on the issue that this aspect of the appeal will be dismissed.

While hesitant to apply higher levels of First Amendment scrutiny to the CTEA however, the Court will most likely do exactly that in deciding the ultimate fate of the Copyright Clause arguments. Rather than overturn precedent, more likely they will remand the case to the Appeals Court in accordance with Lessig’s suggestion in the Petitioner’s Brief that retroactive extensions should at minimum “be tested for ‘congruence and proportionality’ to the ends of the Copyright Clause.” This compromise approach would allow the Court to avoid the legislative chaos resulting from a flat-out abolition of the CTEA, while allowing for further consideration of the scope of Congressional authority. If the lower court rules that the CTEA is overly broad to serve its ultimate purpose, it could reject the irrelevant portions and present a more narrowly tailored piece of legislation better able to accomplish the government’s stated goals.

In his brief, Olson presented a wide range of government interests in favor of retroactive copyright extension, but in oral arguments failed to present a reasonable case why retroactive extensions are necessary or capable of accomplishing those goals. Instead of appealing to the Copyright Clause, Olson was continually forced to justify Congress’s passing the CTEA on “necessary and proper” grounds. Unfortunately for Lessig, Eldred, and the other petitioners, the Court demonstrated its reluctance to revoke the legislation on Copyright Clause or First Amendment grounds. Based on their sympathy towards the former however, it is likely that the Court will remand the decision to a lower court for further clarification as to how well retroactive extensions fulfill its self-stated objectives.

The ultimate significance of Eldred v. Ashcroft therefore remains to be seen. It is possible that the Appeals Court will hold against the petitioners a second time, and that the CTEA adequately fulfills its objectives. If so, Eldred will be viewed as a daring, but ultimately inconsequential, challenge to the status quo of copyright legislation. If, on the other hand, either the Supreme or Appeals Courts approve of Lessig’s Copyright Clause argument, it will be heralded as a turning point in the history of both copyright and constitutional law which prevented an abuse of Congressional power and reopened the public domain. Regardless of the Court’s decision however, the issues raised during the oral arguments will certainly continue to influence any future debate on the subject, as further improvements in technology facilitate even greater, as yet unforeseen means of generating and distributing creative expression.

 
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"User Login" | Login/Create an Account | 3 comments | Search Discussion
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historical quibbles (Score: 0)
by Anonymous on Tuesday, December 17 @ 09:54:23 EST
Evans v. Robinson and Blanchard v. Sprague were patent cases, not copyright cases.

Thomas Jefferson did indeed sign "An Act for the Relief of Oliver Evans", but he was quite perturbed when the courts applied the law retrospectively to those who had set up the hopperboy during the time the invention was in the public domain.


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Microsoft (Score: 0)
by Anonymous on Tuesday, December 17 @ 16:18:48 EST
A quick offtopic note:

The paper seems to have been converted to HTML using some broken Microsoft program. All the apostrophes and quotation marks are encoded incorrectly and render as question marks on Unix systems...


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