JURIST >> OPINION >> Forum >> Eldred v. Ashcroft... 


Professor Eugene Quinn
Temple Law School
JURIST Guest Columnist

By now Supreme Court watchers and intellectual property mavens alike know that the United States Supreme Court has upheld as constitutional the Sonny Bono Copyright Term Extension Act of 1998 (CTEA). The CTEA has been both ridiculed and lampooned for some time now, primarily because the impetus for Congress to enact copyright term extension was the fear that the original Mickey Mouse would fall into the public domain. Nevertheless, Eldred v. Ashcroft did raise important questions of constitutional law.

First, the case focused on whether such an extension could be granted retroactively to copyrights already in existence. Second, the case questioned whether the CTEA was categorically immune from challenge under the First Amendment. Justice Ginsburg, speaking for the Supreme Court in a 7-2 decision, held that Congress did not overstep its Constitutional authority in making the CTEA retroactive. The Court also held that the First Amendment did not prohibit the enactment of the CTEA.

The major focus of the scholarly debate surrounding Eldred has been on whether the addition of another 20 years of protection violates the Copyright Clause of the US Constitution. Many believe that the ever-growing length of copyright protection, now life of the author plus 70 years, is too long given the language of the Constitution authorizing protection for only a limited time. Unfortunately perhaps, this issue was not squarely before the Court in Eldred. Also quite unfortunate is that the majority opinion, with respect to the retroactivity issue, can be best summarized by merely saying that Congress has historically enlarged the term of copyright protection retroactively and, therefore, this retroactive extension is also constitutional. The circular logic of such a rationale, which pays homage to stare decisis at the expense of intellectual legitimacy, reminds one of the logic frequently used by the Supreme Court when it addresses the baseball antitrust exemption.

The second, and perhaps far more important issue required the Court to discuss whether the First Amendment prohibits Congress from extending the term of copyright protection. The petitioners argued that the CTEA is a content-neutral regulation of speech that fails heightened judicial review under the First Amendment. This issue found its way to the Supreme Court in part, perhaps, thanks to the infinite wisdom of the United States Court of Appeals for the D.C. Circuit, which has opined that the copyright law is "categorically immune from challenges under the First Amendment." Justice Ginsburg quite appropriately recognized that the D.C. Circuit "spoke too broadly" when it made that statement. Nevertheless, the Court found no reason to embark on a First Amendment analysis because the CTEA did not alter the traditional contours of copyright protection. In other words, in the opinion of the Supreme Court, the CTEA does not work to impede free speech because ideas cannot be copyrighted and because a strong and vigorous fair use defense is available under the Copyright Act.

The Supreme Court's decision in Eldred seems to be a stinging blow for those hoping the Supreme Court would strike down the CTEA and once and for all breathe meaning into the quid pro quo rationale of intellectual property protection envisioned in the US Constitution. In searching for the bright side one must focus on the second issue, the First Amendment issue.

In reading the Ginsburg majority decision from that perspective two things jump out. First, Justice Ginsburg is clearly of the opinion that fair use plays a vital role in defining the delicate balance between protection authorized by the US Constitution and the rights that must flow to society as a whole. Second, her decision implies that the First Amendment is an appropriate consideration when determining the constitutionality of copyright laws when "the traditional contours of copyright protection" are thrown askew. The significance of these two statements is enormous. For some time now, copyright owners have been able to take the benefits of ownership provided by the Copyright Act, while at the same time also enjoying the benefits of private contract law and circumvention protection prohibitions granted by the enactment of the Digital Millennium Copyright Act. In essence, copyright owners have become adept at accepting copyright protection on the one hand and denying through various means the significant fair use rights also guaranteed by the basic copyright statute.

Perhaps in this brave new world which continues to see the erosion of fair use rights, Eldred can be used as a sword to prevent copyright owners and Congress from conspiring to limit fair use. As fair use rights continue to be eroded through technological, contractual and statutory mechanisms, the traditional contours of copyright protection will become increasingly compromised, which should mandate scrutiny under the First Amendment. In this regard perhaps Eldred can plant the seed for future challenges to the erosion of fair use, an issue that some court is going to have to confront eventually.

Over time the decision in Eldred will probably become known more for recognizing that the First Amendment may provide significant limits on Congressional authority to extend and bolster copyright protections when such protections come at the expense of fair use rights. Could this mean that fair use is fundamental to any copyright regime and cannot be eroded or limited? Could this mean that fair use is required by the Constitution in the same way that originality is constitutionally required? If the tide of copyright law flows in this direction, Eldred may not be regarded as a defeat for the public interest, but rather as a victory for fair use.

Eugene Quinn is currently a Visiting Professor of Law at Temple University School of Law, where he teaches and specializes in the areas of Intellectual Property, Business and Internet Law.

January 16, 2003


JURIST Guest Columnist Eugene Quinn is currently a Visiting Professor of Law at Temple University School of Law. Professor Quinn teaches and specializes in the areas of Intellectual Property, Business and Internet Law, and is a member of the patent bar and admitted to practice in New Hampshire.

Professor Quinn is the author of numerous articles on patent law, copyright law and the Internet. His latest article, titled An Unconstitutional Patent in Disguise, examines the constitutionality of the circumvention prevention measures of the DMCA. He holds an LL.M. in Intellectual Property from Franklin Pierce Law Center; a J.D. from Franklin Pierce Law Center; and a B.S.E.E. from Rutgers University. For his Internet home page, click here.