Eldred v. Ashcroft, 537 U.S. 186 (2003) was a case heard before the Supreme Court of the United States, challenging the Sonny Bono Copyright Term Extension Act (CTEA) which provided for the extension of existing copyright terms by an additional 20 years from the terms set by the Copyright Act of 1976. The law affected both new and existing works.

Specifically, for works published before January 1, 1978 and still in copyright on October 27, 1998, the term was extended to 95 years. For works authored by individuals on or after January 1, 1978 (including new works), the copyright term was extended to equal the life of the author plus 70 years. For works authored by joint authors, the copyright term was extended to the life of the last surviving author plus 70 years. In the case of works-for-hire, anonymous or pseudonymous works, the term was set at 95 years from the date of first publication, or 120 years from creation.

The end result of this was to prevent a number of works, beginning with those published in 1923, from entering the public domain in 1998 and subsequent years (as would have occurred under the Copyright Act of 1976). Books, films and other materials which the plaintiffs had been prepared to republish or restore were now unavailable due to copyright restrictions.

The lead petitioner, Eric Eldred, is a noncommercial Internet publisher of public domain texts and derivative works. Eldred was supported by a group of commercial and non-commercial interests - publishers, music liscensing operations, web developers, etc. - who rely on the public domain to distribute their work.

The case for the CTEA was made by the U.S. Attorney General John Ashcroft (who replaced Janet Reno, who originally represented the Federal Government's case ex officio. Several creative trade organizations and associations supported the CTEA including the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA), and the American Society of Composers, Authors and Publishers (ASCAP).

Eldred's CaseEdit

The original complaint was filed in the United States District Court on January 11, [[1999. The plaintiffs' argument was threefold:

  1. That by retroactively extending copyright terms, Congress had violated the requirements of the U.S. Constitution's Copyright Clause, which gives Congress the following 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" (emphasis added)
    Plaintiffs argued that by reading this formulation so as to allow for any number of retroactive extensions, Congress could in practice guarantee an unlimited period of copyright protection, thus thwarting the intent of the clause.
  2. That any copyright law must be subject to scrutiny under the First Amendment, thereby insuring a balance between freedom of speech and the interests of copyright.
  3. That the doctrine of public trust requires the government to show a public benefit to any transfer of public property into private hands, and that the CTEA violates this doctrine by withdrawing material from the public domain.

In response, the government argued that Congress does indeed have the latitude to retroactively extend terms, so long as the individual extensions are also for "limited times," as required by the Constitution. As an argument for this position, they referred to the Copyright Act of 1790, the first Federal copyright legislation, which applied Federal protection to existing works. Furthermore, they argued, neither the First Amendment nor the doctrine of public trust is applicable to copyright cases.

On October 28, 1998, Judge June Green issued a brief opinion rejecting all three of the petitioners' arguments. On the first count, she wrote that Congress had the power to extend terms as it wished, as long as the terms themselves were of limited duration. On the second count, she rejected the notion of First Amendment scrutiny in copyright cases, based on her interpretation of prior Supreme Court decisions on the issue. On the third count, she rejected the notion that public trust doctrine was applicable to copyright law.

Eldred's AppealEdit

The plaintiffs appealed the decision of the District Court to the United States Court of Appeals, filing their initial brief in May of 2000. Arguments were similar to those made in the District Court, except for those regarding the public trust doctrine, which were not included in the appeal.

Instead, the plaintiffs extended their argument on the copyright clause to note that the clause requires Congress to "promote the Progress of Science and useful Arts," and argued that retroactive extensions do not directly serve this purpose in the standard quid pro quo previously required by the courts.

The case was decided on February 16, 2001. The Appeals Court upheld the decision of the District Court in a 2 to 1 opinion. In a forceful dissent, Judge David Sentelle agreed with the plaintiffs that CTEA was indeed unconstitutional based on the "limited Times" requirement. Supreme Court precedent, he argued, held that one must be able to discern an "outer limit" to a limited power; in the case of retrospective copyright extensions, Congress could continue to extend copyright terms indefinitely through a set of limited extensions, thus rendering the "limited times" requirement meaningless.

Following this ruling, plaintiffs petitioned for a rehearing en banc (in front of the full panel of nine judges). This petition was rejected.

Appeal to the Supreme CourtEdit

On October 11, 2001, the Plaintiffs filed a Petition for Certiorari to the Supreme Court of the United States. On February 19, 2002, the Court granted Certiorari, agreeing to hear the case.

Oral arguments were presented on October 9, 2002. Lead counsel for the plaintiff was Lawrence Lessig. Lessig refocused the Plaintiffs' brief to emphasize the Copyright clause restriction, as well as the First Amendment argument from the Appeals case. The decision to emphasize the Copyright clause argument was based on both the minority opinion of Judge Sentelle in the appeals court, and on several recent decisions authored by then Supreme Court Justice William Rehnquist: United States v. Lopez and United States v. Morrison.

In both of those decisions, Rehnquist, along with four of the Court's more conservative justices, held Congressional legislation unconstitutional, because said legislation exceeded the limits of the Constitution's Commerce clause. This profound reversal of precedent, Lessig argued, could not be limited to only one of the enumerated powers. If the court felt that it had the power to review legislation under the Commerce clause, Lessig argued, then the Copyright clause deserved similar treatment, or at very least a "principled reason" must be stated for according such treatment to only one of the enumerated powers.

In January of 2003, the Court held the CTEA constitutional by a 7-2 decision. The majority opinion, written by Justice Ruth Bader Ginsburg, relied heavily on the Copyright Acts of 1790, 1831, 1909, and 1976 as precedent for retroactive extensions. The Supreme Court declined to address Lessig's contention that Lopez and Morrison offered precedent for enforcing the Copyright clause, and instead reiterated the lower court's reasoning that a retroactive term extension can satisfy the "limited times" provision in the copyright clause, as long as the extension itself is limited instead of perpetual. Furthermore, the Court refused to apply the proportionality standards of the Fourteenth Amendment or the free-speech standards in the First Amendment to limit Congress's ability to confer copyrights for limited terms.

Dissenting opinions were penned by Justices John Paul Stevens and Stephen Breyer. Lessig expressed surprise that no decision was authored by Justice Rehnquist or by any of the other four justices who supported the Lopez or Morrison decisions. Lessig would later regret basing his defence on legal arguments based on precedent, rather than attempting to demonstrate that the weakening of the public domain would cause harm to the economic health of the country. [1]

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