Mudcat Café message #799120 The Mudcat Café TM
Thread #52243   Message #799120
Posted By: Genie
08-Oct-02 - 05:43 PM
Thread Name: Copyright Extens.Case @ SCOTUS 10/9/02
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02

From: Law School in a Nutshell, Part 1
Posted by James Grimmelmann on Monday, September 30 @ 21:54:07 EDT

The Eldred v. Ashcroft... case... is scheduled for argument on October 9
...
Eric Eldred et al., petitioners: [are] asking the Supreme Court to overrule the lower court's decision and rule that retroactive copyright extensions are
unconstitutional.
...
[Main question] : does Congress have the power to extend copyright effectively forever, and doesn't the First Amendment have something to say on the topic?

"Well, actually, the Copyright Term Extension Act's blanket retroactive extension of existing copyright terms exceeds Congress's power under the Copyright
Clause." If they challenge you ... you can...tell them that "retroactively extended copyright terms are not 'limited'" and that "retroactively extended copyright terms
do not 'promote the progress of science.'"
...
Of course, the unconstitutionality that Eldred is concerned with is, to be honest, slightly subtle, so it's not wholly surprising that the district judge on the bottom
of the totem pole wasn't going to stick his neck out in getting to the constitutional queston on which the whole case hinges.
...
The entire case in Eldred is that a) the Copyright Clause doesn't let Congress extend copyright retroactively, and b) the First Amendment doesn't let Congress
extend copyright retroactively. And now you have, right in front of you, the Copyright Clause, the relevant piece of the First Amendment, and a citation to the
Sonny Bono act. ...

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Why do I have the gnawing apprehension that this particular SCOTUS will come down, maybe 5-4, in favor of big business at the expense of the general
population? (Yes, many authors, artists, etc., are "little guys," but it is primarily the big business movie, TV, and recording industry folks who care about
copyrights being extended for 90 years after the death of the original artist or copyright holder and long after that artist expected the copyright protection to last
when s/he created the work-- in essence meaning nothing can be in public domain until most people no longer care about it --?)

Patents have much more limited duration, and "Eldred" will argue that the constitutional provisions were intended to limit copyrights similarly, rather than have
them extended retroactively and, thus, potentially indefinitely.


In case you want to read a bit more about the case without going through the whole previous thread, href=http://www.sfgate.com/cgi-bin/article.cgi?file=/gate/archive/2002/09/26/bonoact.DTL"> click here/