Eldred v. Ashcroft: Further Questions Raised in Oral Argument

1. Constitutionality of Prior Term Extensions

Implications of the Petitioners' Theory: The Risk of Chaos

Justice O'Connor raised the concern that a finding for the petitioners in this case runs "the risk of upsetting previous extensions of time". Justice Breyer expressed the particular concern that if the petitioner's argument succeeds the 1976 extension might also be unconstitutional, noting that "the chaos that would ensue would be horrendous".

Lessig, counsel for the petitioners, conceded that the 1976 Act would be unconstitutional under the petitioners' theory, but argued that the 1976 Act may be distinguished from the 1998 Act in question here (e.g. the 1976 Act also had some features which promoted the purpose of the Copyright Clause), and that the "severe disruption exception" to retrospectivity might apply. With respect to pre-1976 extensions of the copyright term, Lessig conceded that "in 1831 and 1909 Congress extended terms in a way that is inconsistent with the strongest form of the test we have advanced" but argued that the test need not be carried that far.

Are these arguments persuasive? Are there other arguments that could be made to limit the result in this case to the 1998 Act? Should the result be limited to the 1998 Act?

Unchallenged Extensions

Chief Justice Rehnquist also questioned why previous extensions of the copyright term have not been challenged in the courts, suggesting that this may be because "everybody felt there was no basis for challenging them". Lessig responded that changed circumstances (most notably the Internet) have resulted in an expansion of the scope of copyright which now makes the limitations of the Copyright Clause more significant than ever before.

Is this an adequate historical description of why previous extensions have not been challenged? Are there other factors at play? Is the fact that previous extensions have not been challenged relevant?

Empirical Evidence

Finally, Justice Kennedy queried why, if the 1976 Act was unconstitutional, there is no empirical evidence that the 1976 Act has impeded the progress of the arts and science. Lessig responded that the petitioners' claim is not an empirical claim about impeding progress (rather, the argument rests on the notion that there is a structural limit required to ensure that an effectively perpetual term is not permitted).

Is it possible to discover empirical evidence that creativity has been impeded by successive extensions of the copyright term? Is the empirical claim necessary or relevant to the petitioners' argument regarding the interpretation of the Copyright Clause (see below)?

2. Interpreting the Copyright Clause

Specific Causation versus Discretion within a General Scheme; Confining the Limits to the Copyright Term

Justice Souter questioned why the Copyright Clause had to be read as requiring a causal connection between term extension and the promotion of creation, rather than requiring a general scheme which overall promotes creation (with congressional discretion within that scheme as to how to deal with the individual elements). Further, if the case is about limits (and not discretion within a general scheme) as Lessig has argued, Justice Ginsburg queried whether the petitioners' arguments would also apply to Congress' expansion of the scope of copyright.

Is it a sufficient answer to argue, as Lessig did, that there is not an independent general constraint on Congress to promote the progress of the arts and science (i.e. it is looked at to interpret "limited times") and therefore the other dimensions of copyright (e.g. scope) are distinguishable? Are there policy reasons why the framers of the Constitution would focus on limiting the copyright term but not the scope? Are there any limits placed on Congress with respect to the scope of copyright?

Discretion of Congress to Depart from Original Intent

Although conceding that he could "find a lot of fault with what Congress did here", Justice O'Connor pointed to the difficulty in finding a basis in the Constitution for holding that there is not a limited term (even if it is contrary to what the framers had in mind). Chief Justice Rehnquist goes on to analogize to the Commerce Clause where Congress has greatly departed from the original intent of the framers and the Court has upheld those decisions (finding that there is a general grant and thereby giving Congress a great deal of freedom).

To what extent is the analogy to the Commerce Clause a valid one? Note that Lessig also refers to the Commerce Clause to make the point that the Court has also imposed limits on what Congress can do under that clause (i.e. principle of discretion within limits). What role should the framers intent play?

The Limited Edition Print Analogy

Justice Souter challenges the petitioners' analogy to a limited edition print (i.e. a limited print is not "limited" if each time a customer requests a print, a new print is printed in the same way that a limited term is not limited if Congress can continually extend it) on the grounds that the Copyright Clause is not a contract between a writer and the public.

Is Justice Souter's distinction relevant (although not a contract, does the Copyright Clause not represent a bargain of sorts between authors and the public)? Does this distinction undermine the analogy's utility as an illustration of the plain meaning argument (i.e. the term "limited" must be given its plain meaning to give effect to the constitutional limit)?

3. The First Amendment Argument

Retrospective v. Prospective Application

Justice Ginsburg asks how the distinction made by the petitioners' between prospective and retrospective legislation fits into the First Amendment claim that opportunities to build on works in the public domain is a fundamental First Amendment interest. The Court points out that Congress has always done things retrospectively and prospectively in the interests of equality of treatment (so that persons who receive a copyright a week before the amendment are treated the same as persons who receive a copyright a week after). (Note that Justice Scalia later questions why failing to apply an act retrospectively would be inequitable when an author gets exactly what he was entitled to at the time that he created the work.)

Lessig argues that the strongest First Amendment argument applies to the retrospective extension because when Congress legislates prospectively it does not know who will benefit from the extension, whereas retrospective legislation involves a choice between particular authors and the public. Lessig further notes that the same week before/week after problem occurs anyway because the extension does not apply to works that pass into the public domain a week before the 1998 Act is passed (i.e. it only applies to subsisting copyrights). (Note that this line of argument is later picked up by Justice Souter who asks Government's counsel (Olson) why the equity argument would not apply to works that have fallen into the public domain).

Is the petitioners' retrospective-prospective distinction persuasive? Is equality of treatment a sufficient justification for the retrospective application of the Act (given that Congress decides where to draw the line (i.e. equal treatment for subsisting copyrights but not public domain works))?

Interdependence of the Copyright Clause Argument and the First Amendment Claim

The Court also questioned the independence of the Copyright Clause argument and the First Amendment argument. The Court suggested that success on the Copyright Clause argument is critical to the success of the First Amendment argument (i.e. it weakens the government's claim of an important purpose and important objective in the intermediate scrutiny analysis). Justice O'Connor further notes that there are no examples where the Court has found that the Copyright Clause has not been violated and then gone on to invalidate the Act on First Amendment grounds.

Is there a way of articulating a completely independent First Amendment argument (without using the Copyright Clause argument)? Would it violate a constitutional principle or the framers intent to view the Copyright Clause and the First Amendment as two independent grounds for invalidating a copyright act?

4. Other arguments

The Meaning of Progress

In an apparent attempt to determine whether the retrospective application of the Act may be justified, Justice Stevens asks whether promoting distribution of already created works (for example, old films) and international harmonization of copyright laws would also "promote the progress of the arts and science" and justify, for example, recopyrighting works already in the public domain. Lessig's response suggests that he concedes that a broad conception of progress is possible, so long as constitutional and other implied limitations are also satisfied. When asked the same question, Olson agreed that Congress could recopyright public domain works.

Should an expansive definition of progress be adopted and if so, does this weaken the petitioners' argument or are there other ways of promoting distribution without violating the limited times constraint?

The Economic Analysis

Throughout the argument, Justice Breyer approached the case from an economic perspective. Noting that the statute is an economic statute, Justice Breyer enumerates what he perceives to be the harms of the statute (i.e. giving a windfall to existing copyright holders and for the 99% of copyrights that have no commercial value after 70 years, the costs of locating the owners to obtain permissions to include them in databases, etc.) and the advantages (i.e. uniformity and dissemination). The incentive value of an additional 20 years is counted as a zero (because it is unlikely in Justice Breyer's view to affect the incentive of the author to create new works or to come to the U.S. to copyright the work).

What role should an economic analysis play in determining a constitutional challenge? Is it appropriate for the Court to weigh the economic value of the Act?

5. The Role of the Supreme Court

A recurring theme in Olson's argument before the Court is that Congress has been granted a broad power and that the decision as to what the term should be from time to time (as long as it is not forever) is within the discretion of the Congress, as is the judgment as to what the economic incentive or other benefits might be. Justice Ginsburg however rightly questions "who is the judge of when it becomes unlimited?". Olson's response is that the Court should apply the Necessary and Proper Clause to determine whether the judgment made by Congress is convenient or useful in terms of the achievement of the goals.

Is it possible to distinguish the functional equivalent of an unlimited time (which Olson concedes would violate the constitution) and a limited time which is infinitely extendable (Justice Scalia)?

Does Olson's test for judicial review defeat the limits in the constitution? Is it arguable that even under Olson's test, Congress has exceeded its powers in the instant case?