The discussion of copyrights chez Ygelsias and Atrios compelled me to take another look at the Supreme Court’s recent decision in Eldred v. Ashcroft. One of the things that’s fascinating about the case is that, as Atrios notes, the Copyright Clause in Article I essentially requires itself to be read pragmatically and consequentially, granting Congress the power to grant copyrights only for the purpose of promoting “the Progress of Science and useful Arts.” As many of you may remember, the case concerned the “Sonny Bono Copyright Term Extension Act,” which (among other things) gave a 20-year extension to most existing copyrights, extending them to 95 years. The question of the case is whether this extension was consistent with this limitation on Congressional power. The Court ruled 7-2 that the Act was constitutional. This is a tough case, at least for a non-libertarian such as myself, because Congress is entitled to a large degree of deference when it comes to determining what constitutes scientific or artistic progress. While it’s certainly terrible public policy, I would probably even go along with the Court in upholding the extension of the term of new copyrights; as long as the grant isn’t literally perpetual, I don’t know of any principled way of adjudicating when, exactly, a new copyright is too long.
Where I would unquestionably vote with the dissenters, however, is with respect to the extension of existing copyrights. Particularly given how long the original grants are, there simply isn’t any remotely rational connection between expanding existing copyrights and artistic progress. The artistic products in question have already been created; extending the existing copyright cannot contribute to “progress,” and indeed can only inhibit it. The really striking thing about this case is the dissent by Breyer. As many of you are aware, Breyer is famous for his deference to Congressional power, sometimes upholding it by constructing elaborate ex post facto rationales for legislation whose relationship to the actual purposes of Congress are often highly dubious. When even Breyer can’t come up with a halfway plausible story to connect an act of Congress to the public interest, you know you’ve got nothing. As he points out, this is nothing but corporate rent-seeking that simply doesn’t have any connection whatsoever to the ends required by the Copyright Clause:
The economic effect of this 20-year extension–the longest blanket extension since the Nation’s founding–is to make the copyright term not limited, but virtually perpetual. Its primary legal effect is to grant the extended term not to authors, but to their heirs, estates, or corporate successors. And most importantly, its practical effect is not to promote, but to inhibit, the progress of “Science”–by which word the Framers meant learning or knowledge…I would find that the statute lacks the constitutionally necessary rational support (1) if the significant benefits that it bestows are private, not public; (2) if it threatens seriously to undermine the expressive values that the Copyright Clause embodies; and (3) if it cannot find justification in any significant Clause-related objective. Where, after examination of the statute, it becomes difficult, if not impossible, even to dispute these characterizations, Congress’ “choice is clearly wrong.”
I think Breyer is right. On all three points, which I think represent a reasonable standard, the legislation clearly fails; it’s not even close. Moreover, the copyright clause is fairly narrow; the possibility of a less deferential reading of the standard by a future court would not have the dire consequences that, say, returning Commerce Clause jurisprudence to its pre-New Deal state would have. As both dissenters point out, to uphold this Act would be to essentially render the Copyright Clause judicially unenforceable, and I don’t think that this is wise or necessary. But I turn the discussion over to you.