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A presentation given for a class on Intellectual Property and Information Law at the University of Michigan Gerald R. Ford School of Public Policy in October 2007.
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Eldred v. Ashcroft537 U.S. 186 (2003)
This work is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States license. Please visit http://www.creativecommons.org for more information.
Photo source: Associated Press
Public domain:The point at which no copyrights are vested in the work. Anyone can copy, distribute, perform, etc. the work.
Slight interlude:
Excerpt from Robert Frost's poem New Hampshire
Well, if I have to choose one or the other,I choose to be a plain New Hampshire farmerWith an income in cash of, say, a thousand(From, say, a publisher in New York City). It's restful to arrive at a decision,And restful just to think about New Hampshire.At present I am living in Vermont.
“
”
Source: Closing to an episode of Sonny & Cher in the early 1970s.
Sonny Bono Copyright Term Extension Act (CTEA)
1976
Life of the author + 50 yr.
1998
+ 70 yr.
1923 1998 2019
Photo source: Associatd Press
Eldred v. RenoU.S. District Court for the District of Columbia
REJECTED
Eldred v. RenoU.S. Court of Appeals for the District of Columbia Circuit
REJECTED
REJECTED
Photo source: Associated Press
Eldred v. AshcroftU.S. Supreme Court
REJECTED
We granted certiorari to address two questions: whether the CTEA’s extension of existing copyrights exceeds Congress’ power under the Copyright Clause; and whether the CTEA’s extension of existing and future copyrights violates the First Amendment.
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We granted certiorari to address two questions: whether the CTEA’s extension of existing copyrights exceeds Congress’ power under the Copyright Clause; and whether the CTEA’s extension of existing and future copyrights violates the First Amendment.
“
”
We granted certiorari to address two questions: whether the CTEA’s extension of existing copyrights exceeds Congress’ power under the Copyright Clause; and whether the CTEA’s extension of existing and future copyrights violates the First Amendment.
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”
In sum, we find that the CTEA is a rational enactment; we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be.
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”
In sum, we find that the CTEA is a rational enactment; we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be.
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”
1. Congress erred in extending copyright forpre-existing works
2. Congress exceeded its authority based on the “limited times” provision of the copyright clause
3. CTEA regulates speech and therefore requires the stricter scrutiny of a First Amendment restriction.
Photo source for Justice Ginsburg: The Supreme Court Historical Society
1. Pre-existing works
2. “Limited times”
3. 1st Amendment restriction
1. Pre-existing works
2. “Limited times”
3. 1st Amendment restriction
1. No originality
2. Doesn’t promote progress
3. Ignores copyright’s quid pro quo
1. Pre-existing works
2. “Limited times”
3. 1st Amendment restriction
History reveals and unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedlyunder the same regime.
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”
1. No originality
1. Pre-existing works
2. “Limited times”
3. 1st Amendment restriction
2. Doesn’t promote progress
Berne Convention for the Protection of Literary and Artistic Works
1. Pre-existing works
2. “Limited times”
3. 1st Amendment restriction
Given the consistent placement of existing copyright holders in parity with future holders, the author of a work created in the last 170 years would reasonably comprehend . . . a copyright not only for the time in place when protection is gained, but also for any renewal or extension legislated during that time.
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”
3. Ignores copyright’s quid pro quo
Photo source: Wikimedia Commons
1. Pre-existing works
2. “Limited times”
3. 1st Amendment restriction
United States v. Lopez
©
1. Pre-existing works
2. “Limited times”
3. 1st Amendment restriction
Eldred v. Ashcroft
“
”
[Congress shall have the power] 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.
1. Pre-existing works
2. “Limited times”
3. 1st Amendment restriction
28 years = Limited
Life of author + 70 years = Still Limited
1. Pre-existing works
2. “Limited times”
3. 1st Amendment restriction
Forever = NOT Limited
“
”
Permitting Congress to extend existing copyrights allows it to evade the ‘limited Times’ constraint by creating effectively perpetual copyrights through repeated extensions.
1. Pre-existing works
2. “Limited times”
3. 1st Amendment restriction
“”
A regime of perpetual copyrights ‘clearly is not the situation before us.’
“
”
CTEA is a content-neutral regulation of speech that fails heightened judicial review under the First Amendment.
1. Pre-existing works
2. “Limited times”
3. 1st Amendment restriction
“
”
The First Amendment securely protects the freedom to make – or decline to make – one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.
1. Pre-existing works
2. “Limited times”
3. 1st Amendment restriction
In sum, we find that the CTEA is a rational enactment; we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be.
“
”
U.S. Constitution: Article I, Section 8
[Congress shall have the power] 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.
“
”
U.S. Constitution: Article I, Section 8
“
”
[Congress shall have the power] 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.
Because [encouraging new inventions and adding knowledge to the public domain] provide the only avenue for congressional action under the Copyright/Patent Clause of the Constitution, any other action is manifestly unconstitutional.
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The fact that Congress has repeatedly acted on a mistaken interpretation of the Constitution does not qualify our duty to invalidate an unconstitutional practice when it is finally challenged in an appropriate case.
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”
CRS Report: Copyright Term Extension:
Estimating the Economic Values
11.9% 11.3%
38.7%
0.0%
20.0%
40.0%
60.0%
80.0%
100.0%
Books Music Movies
Value status
2.0%
0.0%
20.0%
40.0%
60.0%
80.0%
100.0%
Copyrights between 55 and 75 years old
Value status
Hal Varian
Robert Hahn
Milton Friedman
George Akerlof
Kenneth Arrow
Timothy Bresnahan
James Buchanan
Ronald Coase
Linda Cohen
Jerry Green
Thomas Hazlett
C. Scott Hemphill
Robert Litan
Roger Noll
Richard Schmalensee
Steven Shavell
Richard Zeckhauser
Amicus curiae:Literally “friend of the court. A brief filed by an outside party, generally arguing in favor of one of the parties.
Yet another slight interlude:
CTEA’s approximate valueto average copyright holder:
0.33%≈≈≈≈$0.07
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What potential Shakespeare, Wharton, or Hemingway would be moved by such a sum? What monetarily motivated Melville would not realize that he could do better for his grandchildren by putting a few dollars into an interest-bearing bank account?
U.S. Constitution: Article I, Section 8
“
”
[Congress shall have the power] 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.
U.S. Constitution: Article I, Section 8
“
”
[Congress shall have the power] 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.
Eldred v. AshcroftU.S. Supreme Court
REJECTED
Public Domain Enhancement Act
After 50 years, require copyright holders to pay a small ($1) fee to retain their rights.
If they don’t pay for 3 years, their work passes into the public domain.
Excerpt from Robert Frost's poem New Hampshire
Well, if I have to choose one or the other,I choose to be a plain New Hampshire farmerWith an income in cash of, say, a thousand(From, say, a publisher in New York City). It's restful to arrive at a decision,And restful just to think about New Hampshire.At present I am living in Vermont.
“
”Locked away until 2019
Questions?
![[NOT YET SCHEDULED FOR ORAL ARGUMENT] …NOT YET SCHEDULED FOR ORAL ARGUMENT] Court of Appeals Docket #: ... FOR THE DISTRICT OF COLUMBIA CIRCUIT KASIPPILLAI ... Eldred v. Ashcroft,](https://img.pdfslide.us/doc/110x75/5b20cdbe7f8b9a6e3f8b468b/not-yet-scheduled-for-oral-argument-not-yet-scheduled-for-oral-argument-court.jpg)
