On Wednesday, October 9th, the Supreme Court hears a challenge that we joined against the constitutionality of the Sonny Bono Copyright Term Extension Act (“CTEA”) in Eldred v. Ashcroft. That bill gives more government benefits to the narrow and special interests of Disney and Hollywood. Hasn’t government propped them up too long already? Mickey, Goofy, Pluto and Donald all have copyrights that were due to expire this decade, but the CTEA tried to give Disney another twenty years of gravy. Under Disney’s current management, some of that entitlement is plowed back into liberal politics. The political donations by Hollywood are, of course, as liberal as possible.
The CTEA is a government-conferred monopoly, obtained in an unprecedented single-day passage of the bill. On October 7, 1998, the Senate Judiciary Committee approved the CTEA by unanimous consent. 144 Cong. Rec. S11672 (1998). That same day, the full Senate passed the bill by unanimous consent, without even a roll call. Id. S11673. Still during the same day, the House passed it by voice vote under suspension of the rules. 144 Cong. Rec. H9946 (1998). President Clinton subsequently signed it into law. Pub. L. No. 105-298, 112 Stat. 2827 (1998). Limited government, competition, future innovation and free speech were all pummeled in the stampede.
The CTEA extended the copyright on future and existing works by a remarkable twenty additional years. This additional period alone far exceeds the entire original copyright term of 14 years. Act of May 31, 1790, § 1, 1 Stat. 124. The CTEA thereby thwarts competitive and free speech uses of 75-year-old works for another twenty years. Moreover, this was the eleventh time in the past forty years that Congress has extended the copyright term. If such federal overreaching is upheld, then Congress could repeatedly extend copyright restrictions on existing works for periods totaling decades or even centuries.
That is plainly not what the Framers intended in granting Congress its copyright power. Congress does not have carte blanche to grant monopolies, as the British king granted monopolies to his favorite courtiers to accord them private enrichment. The Copyright Clause restricts congressional 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.
U.S. Const., art. I, § 8, cl. 8. This clause expressly contains two essential restraints on Congress with respect to copyrights: they must be confined to “promote the Progress,” as in creating incentives for new works, and they must be “for limited Times,” as in the original copyright act. See, e.g., Goldstein v. California, 412 U.S. 546, 555 (1973) (“The clause thus describes both the objective which Congress may seek and the means to address it.”).
Thus the Copyright Clause limits congressional authority to grants of “limited Times” that “promote the Progress of Science.” U.S. Const. art. I, § 8, cl. 8. Government-granted monopolies are economically disfavored, as the Framers recognized. See, e.g., Graham v. John Deere Co., 383 U.S. 1, 7 (1966) (“Jefferson, like other Americans, had an instinctive aversion to monopolies. It was a monopoly on tea that sparked the Revolution and Jefferson certainly did not favor an equivalent form of monopoly under the new government.”). The CTEA’s expansion of a copyright monopoly for existing works is neither “limited” in times nor in promotion of “Progress”. This represents a government-conferred monopoly beyond an enumerated power of Congress.
A retroactive extension of copyright term also runs afoul of the right to free speech. Anglo-American copyright law has a history of controlling and censoring speech hostile to the view of the Crown. Retroactive extension of copyright term is an unconstitutional censorship of speech utilizing long-existing works. The CTEA prolongs the ability of a few to block use by the public of works that lost their creative value long ago. Like other misuses of copyright, including attempts to own and sell access to legal regulations, the CTEA is inconsistent with the First Amendment and it was error for the court below to hold otherwise.
Some rely on foreign law as a justification for the CTEA. Under that approach, few constitutional limits on federal power would be meaningful, as Congress could expand its power to harmonize with foreign countries in endless ways. But foreign governments are obviously not subject to the U.S. Constitution, and it makes little sense to cite their rules as justification for domestic legislation. Conceptually, there is never a need to dilute principles of limited American government in order to accommodate different standards elsewhere. Moreover, the alleged harmonization is a fiction, as the term extension actually increased the disparity with foreign law for many copyright holders.
The Copyright Clause guards against state-conferred monopolies, which are economically deleterious and disruptive of free speech. Its text expressly restrains congressional authority, in both purpose and effect. Supreme Court precedents reinforce these limits on copyright. The First Amendment further narrows federal power in this field, as the public enjoys free speech rights in works that can no longer be called original. The court below erred in rejecting these essential restraints on federal power.
These restrictions on purpose and means are essential to ensure that Congress encourage creative and innovative works, rather than inhibit them through state-conferred monopolies over speech.
“The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Marbury v. Madison, 5 U.S. 137, 176 (1803) (Marshall, C.J.) (emphasis added). The enumerated federal powers, once defined, are thus also “limited” by their very terms. “The judicial authority to determine the constitutionality of laws, in cases and controversies, is based on the premise” of Marbury quoted above. City of Boerne v. Flores, 521 U.S. 507, 516 (1997). “Departing from their parliamentary past, the Framers adopted a written Constitution that further divided authority at the federal level so that the Constitution’s provisions would not be defined solely by the political branches nor the scope of legislative power limited only by public opinion and the legislature’s self-restraint.” United States v. Morrison, 529 U.S. 598, 616 n.7 (2000).
The Free Speech Clause also limits the copyright extension of CTEA. A cited reason for supporting the First Amendment was to limit possible excesses under the Copyright Clause. “‘Though it is not declared that Congress have a power to destroy the liberty of the press; yet in effect, they will have it …. They have a power to secure to authors the right of their writings. Under this, they may license the press, no doubt; and under licensing the press, they may suppress it.’” Ratification of the Constitution by the States, Pennsylvania, 2 The Documentary History of the Ratification of the Constitution 454 (1976) (quoting Pennsylvania Constitutional Convention Delegate Robert Whitehill on December 1, 1787).