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31160187 Property Law Outline

31160187 Property Law Outline

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Published by Yin Huang

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Published by: Yin Huang on Oct 22, 2011
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19.1.1 Overview

Eldred sought to invalidate the Copyright Term Extension Act (“CTEA”).

19.1.2 Facts

Eldred and other petitioners made use of copyrighted works that entered

the public domain. They challenged the CTEA on several constitutional


19.1.3 Issue

(1) Does the extension of the term of copyright protection violate the con-

stitutional provision of a “limited” term of copyright? (2) Does the CTEA

“promote the Progress of Science”? (3) Does the CTEA amount to an un-

constitutional regulation of free speech?


19.1.4 Holding

(1) The extension of copyright does not violate any constitutional provisions.

(2) The CTEA does “promote the Progress of Science.” (3) The CTEA is

not an unconstitutional regulation of free speech.

19.1.5 Reasoning

Congress has historically enacted copyright extensions without question as

to the constitutionality of its measures. Eldred does not argue that the new

copyright term granted by the CTEA violates the constitutional requirement

of a “limited” term. Rather, he argues only that retroactive application of the

term to existing works would be unconstitutional. Congress has explicitly

stated that the uniform application of copyright extensions is intended to

preserve fairness, so that authors are not afforded greater or lesser protection

depending on when they happened to publish their works. In any case, the

length of copyright term lies generally within the discretion of Congress.

It is also within the discretion of Congress to decide what is the best way

of advancing the objectives of the Copyright Clause. Eldred argues that the

Copyright Clause is intended to secure a quid pro quo: the author receives

copyright protection now in exchange releasing the work to the public domain

later. The history of copyright legislation, however, shows that this quid pro

quo should be understood to include extensions of copyright. Congress is at

liberty to write a guarantee of future extensions into legislation. It also has

the power to achieve the same effect through historical precedent.

Eldred also contends without merit that the CTEA amounts to an un-

constitutional restriction on free speech. To the contrary, the purpose of the

Copyright Clause is to promote the creation and publication of free expres-

sion. To that end, copyright law already contains provisions to guarantee

free speech. Ideas are not copyrightable, and the free-use defense allows the

copying of works for purposes like academic research and parody.

Justice Stevens, dissenting. Although early congressional decisions should

be afforded deference on the grounds that they reflect the intentions of the

framers, later decisions are not entitled to such judicial leeway. The Copy-

right Act of 1831 in no way reflects the intentions of the framers, who were

long dead by then. It does not establish the constitutionality of copyright

extensions. Under the majority’s analysis, Congress would have the power


to extend copyright indefinitely.

Justice Breyer, dissenting. The majority has given Congress the lee-

way to grant an effectively perpetual copyright that benefits private parties.

From the standpoint of the author, there is nor real difference between a

copyright of the current length and a perpetual copyright. Because royalties

tend to decay as a work gets older, the regime established by the CTEA al-

ready grants more than 99% of the value that can be expected to be derived

from a perpetual copyright. It is absurd to suggest that extension of copy-

right beyond the death of an author would somehow encourage an author to

produce more works during his or her lifetime. Rather, the primary effect

would be to make it difficult for the public to make use of the work, even

after its commercial value has long since disappeared. In fact the “limited

time” provision was intended specifically to avoid the sort of situation that

the CTEA has created.

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