Prominent constitutional law professors Jack Balkin (Yale), Yochai Benkler (NYU), Burt Neuborne (NYU), Robert Post (Boalt Hall), and Jed Rubenfeld (Yale) have filed an Amicus Curiae brief in the case of Eldred v. Ashcroft, which will be before the US Supreme Court. Read their brief (Brief of Jack Balkin, et. al., as Amici Curiae in Support of the Petitioners [PDF] ). Additional Amici and the official plaintiff's brief can be found on the official LEGAL DOCUMENTS webpage. Two excellent mock briefs (one each for petitioners and defendant) can be found on this LawMeme article concerning Yale's moot court finals (Yale Law Moot Court Verdict - Eldred Wins!).
The case (for those who have been living under a rock) concerns the constitutionality of the Sonny Bono Copyright Term Extension Act (CTEA) [PDF] which, following intense lobbying by media conglomerates such as Disney and Time Warner, was enacted by Congress in 1998 and extended the term of all existing and future copyrights by twenty years. Eric Eldred, who maintains a website that gives readers free access to materials whose copyrights have expired, challenged the CTEA with the assistance of the Openlaw project of the Berkman Center. Although Eldred has lost in both the district (decision) and appellate (decision) courts, the case has been accepted [PDF] for review by the Supreme Court
The specific questions before the Supreme Court are:
- Did the D.C. Circuit err in holding that Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?
- Is a law that extends the term of existing and future copyrights "categorically immune from challenge[] under the First Amendment"?
The brief by the constitutional law professors deals exclusively with the question of whether copyright laws are subject to review under the First Amendment. Their basic argument is that the Court of Appeals for the District of Columbia was completely out of line in declaring that copyright law is "categorically immune from challenges under the First Amendment" and that Eldred "lack[s] any cognizable first amendment right to exploit the copyrighted works of others." The professors call this "indefensible doctrine." They're right. As the amicus brief argues, under this doctrine, laws affecting copyrighted speech gets less review by the courts than laws affecting obscenity.
The professors also point out how the appellate court misinterprets previous Supreme Court decisions (Harper & Row) that specifically point out "First Amendment protections ... embodied in the Copyright Act[.]" The professors ask how these "First Amendement Protections" could exist, "if individuals had 'no cognizable first amendment right to exploit the copyrighted works of others.'"
The professors don't actually ask the Supreme Court to overturn the CTEA, but respectfully suggest that the USSC overturn the appellate court decision and send it back for the appellate court to take the First Amendment into consideration in reviewing the case. In reviewing the case however, the professors also make a strong argument that any such review must be under a "heightened scrutiny" standard according to First Amendment doctrine. Although not strictly necessary to their argument, the professors helpfully point out that any "heightened scrutiny" in reviewing the constitutionality of the CTEA would likely result in the death of the statute.