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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."
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.
Isn't avoiding the disruption of business models necessary and proper to promoting the progress of science and the useful arts?
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.
It goes to the intent of the framers. Do you think that the framers intended for retrospective copyright laws to be unconstitutional, then immediately went and voted in the first congress for a retrospective copyright law? That makes no sense.
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.
Some facial merit is all that's needed. Congress makes the laws, not the Supreme Court, and if there is any reasonable way that Congress could come to the conclusion that this law is necessary and proper to promote the progress of science and the useful arts, then the Supreme Court must accepts Congress' determination.
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.
That's a crappy argument, but if the government can show that the law could promote arts and sciences, then it's moot.
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.
I could see if the law only applied to foreign works, but in its current form, I agree. There's no reason these laws need to apply to our copyrighted works as well, even if it was legitimate to make an unconstitutional law just to follow a treaty.
In short, their brief does more to whine about their business interests that it does to address the consitutional issues.
I thought the brief did a good job at showing possible ways that retrospective copyright laws could be necessary and proper to promote the progress of science and the useful arts. This is really the key argument by Eldred. The rest of the Eldred argument is likewise whining about how copyright keeps getting extended over and over again.