Posted 2:24 PM by Robert

Textual Bono

While the Man Without Qualities is not impressed with the economic arguments advanced by opponents of the Sonny Bono Copyright Term Extension Act (the so-called "Bono Act"), the textual - or more purely "legal" - arguments have substantially more force. The best presentation of those arguments I have seen is contained in an article by Robert Patrick Merges and Glenn Reynolds, which includes the following interesting argument:

[C]an't Congress just extend patents and copyrights by invoking the Commerce Clause...? Certainly some commentators have argued that, in the absence of the Copyright and Patent Clause, Congress would have the power to create a patent and copyright system under its authority to regulate commerce among the several states.

There is much to this position, but as a criticism of our approach it has one key failing. Instead of the absence of a copyright and patent clause, we have the presence of the Copyright and Patent Clause. That Clause is generally understood to serve as a limit on congressional power, not simply a grant thereof. To allow Congress to do things under its general commerce power that it is forbidden to do under its specifically applicable copyright and patent power would in essence read the Copyright and Patent Clause out of the Constitution. Such an approach could hardly be said to be faithful to the text of the Constitution or the intent of the Framers.

[O]ne could argue that Congress possesses the power to regulate intellectual property under the Commerce Clause. The Supreme Court rejected a similar argument made with regard to the bankruptcy power in Railway Labor Executives Association v. Gibbons. "[I]f," said the Court, "we were to hold that Congress had the power to enact nonuniform bankruptcy laws pursuant to the Commerce Clause, we would eradicate from the Constitution a limitation on the power of Congress to enact bankruptcy laws." "To hold otherwise," the Court continued, "would allow Congress to repeal the uniformity requirement from Art. I, § 8, cl. 4, of the Constitution." [FN76] The same argument should apply to efforts to override the restrictions imposed upon Congress by the Copyright and Patent Clause.

This is a clever argument, and it does not appear to misrepresent or twist the quoted Supreme Court language. However, it is almost certainly wrong.

For one thing, the Commerce Clause has its own limitations. It is a grant of power over "commerce" - but that grant is limited by the requirement that the 'commerce" regulated must be "among the several states." The Commerce Clause does not grant power to Congress to regulate intra-state commerce. Does that mean that Congress cannot pass a law using its Copyright Clause powers to the extent that law regulates intra-state commerce? After all, if Congress cannot evade the limitations on its powers contained in the Copyright Clause by legislating under the Commerce Clause, then it should also be true that Congress cannot evade the limitations on its powers contained in the Commerce Clause by legislating under the Copyright Clause.

Of course Congress can evade the limitations on its powers contained in the Commerce Clause by legislating under the Copyright Clause. Not even the nineteenth century Supreme Court would have imagined anything else.

Indeed, prior to the 1930's the Supreme Court excluded even such things as intra-state mining of ore from its definition of "commerce among the several states." Under the pre-1930's Supreme Court cases, making and publishing copies only within one state would probably not have constituted "commerce among the several states." But the Copyright Clause has always allowed Congress to regulate such intra-state and at-home copying. Simply put: Under the Supreme Court's pre-1930's construction of the Commerce Clause, the Copyright Clause authorized Congress to regulate very substantial activities which could not be regulated under the Commerce Clause.

Even today, the Lopez cases show that Congressional power under the Copyright Clause is not included in Congress' Commerce Clause power. In fact, under the Lopez cases merely making photocopies of copyrighted pictures in one's home is probably not "interstate commerce." But it could be regulated under the Copyright Clause.

And it will not do to argue that the Commerce Clause confers a "general power" but the Copyright Clause confers only a "specific power." The Commerce Clause creates no more of a "general power" than does the Copyright Clause, as expressly observed by the Chief Justice in the recent oral argument. The equality of these Clauses was more evident under the Supreme Court's pre-1930's precedent, but it is still true today. Moreover, if the Commerce Clause is such a "general grant" of Congressional power, then the Lopez line of cases is probably wrong, which makes it doubly odd that the anti-Bono forces rely so much on the analogy to Lopez.

For a truly "general grant," it's hard to beat the Article I grant of power to Congress "To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States." The construction of the Copyright Clause advanced in the article discussed above seems to imply that Congress could not legislate an unlimited copyright law applicable only to the District of Columbia even if Congress wanted to do that - but Congress could allow each State to legislate unlimited copyright laws applicable only within that State. Does that make sense? Would such a subtle, implied restriction on Congressional power be likely to come from the same people who included the express grant to Congress of the right to exclusive Legislation in all Cases whatsoever over the district?

Professor Reynolds, reasonably, doesn't seem to agree.

In addition, one might consider the a peculiar consequence of the construction advanced by Professors Merges and Reynolds: Under their interpretation, Congress appears to be free under the Commerce Clause to create and regulate forms of intellectual property other than patents and copyrights, and those other forms of intellectual property need not be subject to the Copyright Clause constraints.

Congress has actually done this by creating indefinite federal trademark rights. While trademark rights are not included in copyrights, there can be no question that much of trademark law is regulation of the use of copies of the trademark. In other words, there is a lot of overlap between trademark rights and copyright.

The anti-Bono forces find it outrageious that Disney will be able to stop people from copying Mickey Mouse for another 20 years. Fine.

But then why can the same Disney stop people from using Mickey Mouse as a trademark forever?