Briefs in Eldred Case Against CTEA Online

EricEldred writes: "Legal briefs are now online, from the government and more friends of the Supreme Court, in the Eldred case against the Copyright Term Extension Act, at eldred.cc Also, a special edition of the Loyola of Los Angeles Law Review on the case is at llr.lls.edu. The case will be heard by the Supreme Court October 9th."

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Summary of AOL Time Warner's arguments

[BoVLB]

The AOL Time-Warner brief points out that they are the largest copyright producer, and makes the following arguments:

• Vested interests - Revoking the CTEA extension of existing copyright would disrupt business models, including various mergers and other transactions that placed value on IP. AOL/TW is, of course, a prime example of such mergers. It is also argued that it would reduce the anticipated export revenue for the US. These arguably suggest that coyright extension is good for the US, but they don't address the constitutionality, and are thus moot for the Supreme Court.
• History of Copyright Law - Every law that established or extended copyright did so retrospectively; revoking the CTEA would cast doubt on other copyright laws. Neither point bears directly on whether such retrospective extension is constitutional. Clearly the plaintiffs are not required to attack all non-constitutional laws in the same action.
• Retrospective Extension Stimulates Creation - In the light of the increasing cost of production and distribution of movies and music, an enduring revenue stream from previous works is required as "seed corn"; hence, retrospective extention of copyright does stimulate the Arts, in as much as the same people and organizations will create repeatedly. This argument has some facial merit, but neglects the bootstrap issue in favour of business interests.
• The End Justifies the Means - The brief says that the specification of an end (promotion of Arts and Sciences) does not restrict the execution of the power to legislate copyright. It compares this to the ends specified for taxation (common defence and general welfare) and military (to execute the laws of the union, suppress insurrections, and repell invasions) and how much deference is given to Congress with respect to these.
• International Law - The CTEA apparently both harmonizes with and places the US competitively with respect to international law and convention. The brief fails to be specific about how this makes restrospective copyright extension constitutional.
• Ease of Copying - Apparently "economic analysis" implies that as the cost of copying goes down, the length of exclusive exploitation must go up. No justification is provided, and it does not bear on the constitutional issues anyway.

• In short, their brief does more to whine about their business interests that it does to address the consitutional issues.