The Uneasy Case for Copyright Extension

In February 2002, the U.S. Supreme Court granted certiorari to Eldred v. Ashcroft, a D.C. Circuit case that upheld the 1998 Copyright Term Extension Act (“CTEA”) against a facial challenge brought by Eric Eldred and other parties (“Eldred” or “petitioners”). With the CTEA, Congress sought to conform U.S. copyright duration with international standards and aid American copyright interests by extending both future and existing copyrights by twenty years. The Court granted certiorari specifically to answer two questions that Eldred asked in his petition:Does Congress have the power under the Copyright Clause to extend retrospectively 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?Eldred’s questions betray a major gap, which appears by turns deliberate and muddled, in his arguments to the Court. Under the U.S. Constitution, the federal government cannot act without an enumerated or implied affirmative grant of power.Such grants of powers have limits, and the grants are generally specific to a particular branch of the federal government. Even when acting within such limits, however, the federal government cannot exercise the power where a Constitutional provision bars this exercise. With regard to a grant of power, the petitioners argue that the Copyright Clause itself does not grant Congress the affirmative power to extend existing copyrights.With regard to barring the use of power, the petitioners argue that other constitutional clauses, namely the First Amendment protections for freedom of speech and press that should require Congress to pass Turner/O’Brien scrutiny, prohibit the CTEA extension of both existing and future copyrights.What the petitioners do not argue in these questions or in their briefs, though some of their amici do, is that the CTEA’s extension of future copyrights exceeds Congress’s affirmative Copyright Clause Power. The Government, which defends the constitutionality of the CTEA, similarly emphasizes in its own brief that the petitioners do not make this argument.Nonetheless, the exclusion of this argument seems troubling, in part due to petitioners’ own ambivalent relationship to the argument. The petitioners seem by turns clearly and explicitly to disavow a contention that the Copyright Clause limits Congress’s prospective copyright powers, while at other times making statements that require such a limitation.12 Petitioners can make the argument; despite some protracted controversy in the D.C. Circuit, it does not seem that Eldred was procedurally estopped from making this argument in the Supreme Court.13 So, the petitioners must have had other reasons for declining this line of argument.Whatever the petitioners’ reasons for not making this argument, this Note argues further that the Copyright Clause does not grant Congress the power to enact the CTEA’s prospective extension. This Note will address both the retrospective and prospective grants (grants for existing and future copyrights, respectively), but will do so only with respect to the first question that petitioners raise on the affirmative grant within the Copyright Clause. Any First Amendment prohibition of the CTEA’s exercise of Copyright Clause power is irrelevant if Congress lacks the power to make retrospective and prospective grants.