Editing Eldred v. Ashcroft (section)

==Supreme Court==
On October 11, 2001, the plaintiffs filed a petition for [[certiorari]] to the [[Supreme Court of the United States]]. On February 19, 2002, the Court granted certiorari, agreeing to hear the case.

Oral arguments were presented on October 9, 2002. Lead counsel for the plaintiff was [[Lawrence Lessig]]; the government's case was argued by [[United States Solicitor General|Solicitor General]] [[Theodore Olson]].

Lessig focused the Plaintiffs' brief to emphasize the Copyright Clause restriction, as well as the First Amendment argument from the Court of Appeals case. The decision to emphasize the Copyright Clause argument was based on both the minority opinion of Judge Sentelle in the appeals court, and on several recent Supreme Court decisions authored by Chief Justice [[William Rehnquist]]: ''[[United States v. Lopez]]'' (1996) and ''[[United States v. Morrison]]'' (2000).

In both of those decisions, Rehnquist, along with four of the Court's more conservative justices, held Congressional legislation unconstitutional, because that legislation exceeded the limits of the Constitution's Commerce Clause. This profound reversal of precedent, Lessig argued, could not be limited to only one of the enumerated powers. If the court felt that it had the power to review legislation under the Commerce Clause, Lessig argued, then the Copyright clause deserved similar treatment, or at very least a "principled reason" must be stated for according such treatment to only one of the enumerated powers.

On January 15, 2003, the Court held the CTEA constitutional by a 7&ndash;2 decision. The majority opinion, written by Justice [[Ruth Bader Ginsburg|Ginsburg]], relied heavily on the Copyright Acts of [[Copyright Act of 1790|1790]], [[Copyright Act of 1831|1831]], [[Copyright Act of 1909|1909]], and [[Copyright Act of 1976|1976]] as precedent for retroactive extensions. One of the arguments supporting the act was that life expectancy has significantly increased among the human population since the 18th century, and therefore copyright law needed extending as well. However, the major argument for the act that carried over into the case was that the Constitution specified that Congress only needed to set time limits for copyright, the length of which was left to their discretion. Thus, as long as the limit is not "forever", any limit set by Congress can be deemed constitutional.

A key factor in the CTEA's passage was a 1993 European Union (EU) directive instructing EU members to establish a baseline copyright term of life plus 70 years and [[Rule of the shorter term|to deny this longer term to the works of any non-EU country whose laws did not secure the same extended term]]. By extending the baseline United States copyright term, Congress sought to ensure that American authors would receive the same copyright protection in Europe as their European counterparts.<ref>{{cite web|url=https://www.law.cornell.edu/supct/search/display.html?terms=copyright&url=/supct/html/01-618.ZS.html |title=Eldred v. Ashcroft |publisher=Cornell Law School |access-date=2010-11-22}}</ref>

The Supreme Court declined to address Lessig's contention that ''Lopez'' and ''Morrison'' offered precedent for enforcing the Copyright clause, and instead reiterated the lower court's reasoning that a retroactive term extension ''can'' satisfy the "limited Times" provision in the Copyright Clause, as long as the extension itself is limited instead of perpetual. Furthermore, the Court refused to apply the proportionality standards of the [[Fourteenth Amendment to the United States Constitution|Fourteenth Amendment]] or the free-speech standards in the [[First Amendment to the United States Constitution|First Amendment]] to limit Congress's ability to confer copyrights for limited terms.

[[Stephen Breyer|Justice Breyer]] dissented, arguing that the CTEA amounted to a grant of perpetual copyright that undermined public interests. While the constitution grants Congress power to extend copyright terms in order to "promote the progress of science and useful arts", CTEA granted precedent to continually renew copyright terms making them virtually perpetual.<ref>"The present extension will produce a copyright period of protection that, even under conservative assumptions, is worth more than 99.8% of protection in perpetuity (more than 99.99% for a songwriter like [[Irving Berlin]] and a song like [[Alexander's Ragtime Band]])." 537 U.S., at 255–256.</ref> Justice Breyer argued that it is highly unlikely any artist will be more inclined to produce work knowing their great-grandchildren will receive royalties. With regard to retroactive copyright extension, he considered it foolish to apply the government's argument that income received from royalties allows artists to produce more work saying, "How will extension help today's Noah Webster create new works 50 years after his death?" He also attacked the idea that the [[fair use]] defense would efficiently solve the [[First Amendment to the United States Constitution|First Amendment]] issue, as the defense could not help "those who wish to obtain from electronic databases material that is not there", e.g. teachers searching online for material to be used in the class (and finding that the ideal material has been deleted from the database).<ref>{{cite web|url=http://www.copyright.gov/docs/eldredd1.pdf |archive-url=https://ghostarchive.org/archive/20221009/http://www.copyright.gov/docs/eldredd1.pdf |archive-date=2022-10-09 |url-status=live |title=Supreme Court Decision on Eldred v Ashcroft – Breyer J., dissenting |access-date=2010-11-22}}</ref>

In a separate dissenting opinion, [[John Paul Stevens|Justice Stevens]] also challenged the virtue of an individual reward, analyzing it from the perspective of patent law. He argued that the focus on compensation results only in "frustrating the legitimate members of the public who want to make use of it (a completed invention) in a free market". Further, the compelling need to encourage creation is proportionally diminished once a work is already created. Yet while a formula pairing commercial viability to duration of protection may be said to produce more economically efficient results in respect of high technology inventions with shorter shelf-lives, the same perhaps cannot be said for certain forms of copyrighted works, for which the present value of expenditures relating to creation depend less on scientific equipment and research and development programs and more on unquantifiable creativity.<ref>{{Cite web |url=http://cyberlaw.stanford.edu/lessig/blog/archives/01-618d.pdf |title=Blogs &#124; Stanford Center for Internet and Society |access-date=2007-04-30 |archive-url=https://web.archive.org/web/20080517040116/http://cyberlaw.stanford.edu/lessig/blog/archives/01-618d.pdf |archive-date=2008-05-17 |url-status=dead }}</ref>

Lessig expressed surprise that no decision was authored by Chief Justice Rehnquist or by any of the other four justices who supported the ''Lopez'' or ''Morrison'' decisions. Lessig later expressed regret that he based his argument on precedent rather than attempting to demonstrate that the weakening of the public domain would cause harm to the economic health of the country.<ref>{{cite web |last=Lessig |first=Lawrence |url=http://www.legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.msp |title=How I Lost The Big One |publisher=Legal Affairs |date=2003-01-15 |access-date=2010-11-22 |archive-date=March 14, 2019 |archive-url=https://web.archive.org/web/20190314081446/http://www.legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.msp |url-status=dead }}</ref>