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Sam Heldman


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Monday, September 30, 2002
No. 01-618 Eldred v. Ashcroft

This is a difficult one. The Constitution gives Congress the 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 . . . ." Congress has excercised its power by extending copyright protection for nearly 100 years, through several acts over the years, each of which extended copyrights for additional "limited times." The question is whether Congress may continue to secure copyrights for unlimited "limited times." The D.C. Circuit held that Congress may do so, so long as each extension is itself limited. Judge Sentelle dissented from the panel's holding. In addition, there is a question as to whether copyrights are categorically exempt from First Amendment analysis.

Personally, I would prefer that works eventually enter the public domain, and it does appear that Congress has no intention of ever letting that happen, but the question not my preference, but what the Constitution has to say about it. I note, for no particular reason, that nineteen amici curiae have submitted briefs for each side in this case, for a whopping total of 38 amicus briefs.

The main question I have with this case is: If the Court were to say that there is some limit on the aggregate amount of time that copyrights are to be valid, in what principled way can the Court determine exactly what that limit is? Is it 75 years, 76? 77? On the other hand, if, as the DC Circuit and the Respondent suggest, the copyright must simply refrain from being unlimited, then two hundred or twenty thousand years would also be acceptable, because they are both "limited" amounts of time. Of course, those terms would render meaningless the "limited times" clause of the Constitution.

I am going out on a limb here: I predict that the Court will REVERSE, in a 5-4 or 6-3 vote. Without trying to figure out what each Justice will vote, I also predict that the outcome will not be determined by one of the "usual" 5-4 splits.