Quote:
Originally Posted by spellbanisher
I didn't say it violated the copyright clause; I said it made a mockery of it. The purpose of the copyright clause is to give private incentives to further the public good, specifically, to incentivize creation of new content that will eventually be in the public domain. This is affirmed by the House Report on the Legislation that implemented the Berne Convention in the US:
http://www.law.cornell.edu/supct/pdf/01-618P.ZD1
There are several defenses, however, for the Congressional Power to extend copyright or remove works from the public domain. One defense essentially is that the copyright clause is so broad as to give virtually unlimited leeway to congress in how it tries to execute the clause, with the only restriction being that congress can't explicitly make copyright perpetual. This I think, however, makes a mockery of the clause; if congress continually retroactively extends copyright, then the copyright clause for all intents and purposes becomes a joke. I'm not saying this is an incorrect interpretation, just that this interpretation renders the clause meaningless.
Another defense is that there is precedent for the retroactive extension of copyright dating back to the first congress. However, I think Justice Stevens effectively dispels that defense:
http://www.law.cornell.edu/supct/html/01-618.ZD.html
In other words, the Copyright Act of 1790 created a new regime of Federal Copyright; it did not extend the existing regimes of state copyrights, and therefore, cannot be interpreted as a retroactive extension of copyright.
Still another defense is that congress has repeatedly retroactively extended copyright in the past, and therefore it has the constitutional authority to do so. Stevens also shoots that argument down quite effectively:
Still another defense, and the one that I think was the ultimate impetus for the Eldred Ruling, was one of practicality; basically, overruling Congress on the CTEA would open up a can of worms on a whole slew of ip laws and international agreements. However, it is not clear that that opening that can of worms would impose anywhere near the cost that retroactively extending copyright did. |
All this revolves around a 1798 SCOTUS (yes, that 1798, not 1978) that ruled that the
ex post facto limitation of the Constitution only applied to criminal law, not civil law. That's the reason why Congress can keep extending copyright retroactively.
http://www.cato.org/pubs/journal/cj15n2-3-4.html