Posted 8:51 AM by Robert

What Has Eldred Wrought?

Many of those disagreeing with the Supreme Court decision in Eldred v. Ashcroft continue to assert that the Court was just wrong because the additional time added to the copyright term just can't provide meaningful incentive for the creation of new works.

But Eldred seems to have even worse news for those people: The Copyright Clause allows Congress, if it so desires, to enact a copyright system that is not designed or intended to spur production of new works at all. The Copyright Clause language states only: Congress shall have Power . . . [t]o promote the Progress of Science . . . by securing [to Authors] for limited Times . . . the exclusive Right to their . . . Writings. There is nothing in this language that says Congress can only promote the Progress of Science by granting up-front incentives, although the Bono Act opponents keep saying that.

That's really not bad news, since as pointed out in a prior post, some economists are now arguing that the old "limited-monopoly-for-production-of-new-works" calculus may have been a mistake from the beginning. [Note: these economists challenge more than that particular assumption - including possibly some things suggested here.]

The Eldred majority correctly points out that:

The "constitutional command" we have recognized, is that Congress, to the extent it enacts copyright laws at all, create a "system" that "promote[s] the Progress of Science." ... We have also stressed, however, that it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause's objectives.

Eldred used this approach to the Copyright Clause to justify its refusal to take seriously the argument tendered to the Eldred Court that the Bono Act violated the Copyright Clause because the additional time added to the copyright term just can't provide meaningful incentive for the creation of new works. That kind of determination is for Congress the Court held.

The Eldred principles reach beyond the specifics of the case, as do the principles of most Court decisions: Suppose some economist convinced Congress that the "incentive to create new works" theory was all wrong, even counterproductive [see above reference to what some economists are up to]. Congress doesn't have to continue to depend on that particular disgraced theory. Eldred held that any copyright system that a rational person could believe promotes the progress of science, and grants copyrights only for limited times and only to authors, is authorized as far as the Clause is concerned (other provisions of the Constitution are a different story). In short: Congress could completely eliminate all traces of the "incentive to create new works" approach from the federal copyright system. I think that is what Eldred stands for - and I think that it is mostly right. Of course, if Congress wanted to adopt such a new approach it would not have the benefit of all the past precedent upholding the rationality of the (always questionable and questioned) "incentive to create new works" theory.

And that is a good thing. One of the problems with Professor Lessig's approach is that it became fixated on the copyright term and conflated the very real "limited times" provision of the Copyright Clause with the quite separate role of "monopoly-incentive-for-production-of-new-works," which is not mentioned in the Copyright Clause. But the Copyright Clause applies to every aspect of copyright law - not just the term. For example, in 1976 Congress realized that financing the exploitation of intellectual property is important - and therefore made it easier to mortgage a copyright. Was it a violation of the Copyright Clause for Congress to pass a law specifically intended to ease financing of such exploitation - even if there is no intent to spur the creation of new works? Professor Lessig's approach seems to lead to that result unless one deems a decision by Congress to facilitate financing of existing copyrights to be "necessary and proper" in relation to creating incentives for new works. But facilitating the financing of existing copyrights is no more "necessary and proper" to this end than is extending the terms of those same copyrights. The Constitutional focus on "monopoly-incentive-for-production" is just wrong - there are lots of other perfectly good ways of promoting the progress of Science other than dangling the copyright monopoly in front of a potential author in the hope she will create something new in exchange for some market power. Of course, exactly that focus is perfectly appropriate for those practicing under the existing copyright statutes - since Congress has chosen that focus most (but not all) of the time in those statutes.

Preserving ownership rights arguably (and probably) does promote the Progress of Science by preventing overexploitation and under exploitation of the work. Of course, as noted above, there are fancy new economic theories that suggest otherwise - but Congress is not bound to accept current academic fashion, especially current minority academic fashion. So if Congress wants to enact a "system" that focuses on effects other than spurring new production of copyrightable works - say, by focusing on the benefits of ownership rights in existing copyrights granted or preserved to an author (with no pretense that the system is spurring the creation of new works) - then that's up to Congress. And that's exactly what the Copyright Clause says.

And neither Eldred nor the Copyright Clause stops even there. Could Congress have granted Stravinsky a copyright in the Rite of Spring years after he wrote it or some original copyright expired? The language of the Clause says "Yes" - and I think Eldred does, too. Could Congress grant to me a copyright in the Rite of Spring? No - I am not the author of that work under any acceptable theory. Could Congress grant to foreign authors copyrights in their own works even though those authors had not previously had copyrights in this country or any foreign country (suppose they even live in a country with no copyright law)? Of course. And these results are what the Framers intended.

In consequence, contrary to Professor Lessig's belief - it is the case that Golan was settled by Eldred. And although Professor Lessig is now attempting to radically distinguish the premises of Eldred and Golan, even the Golan complaint intertwines them. Again, there is much truth in old cliches: Hope does spring eternal.

A paragraph from Breyer's dissent touches on these matters:

Third, several publishers and filmmakers argue that the statute provides incentives to those who act as publishers to republish and to redistribute older copyrighted works. This claim cannot justify this statute, however, because the rationale is inconsistent with the basic purpose of the Copyright Clause as understood by the Framers and by this Court. The Clause assumes an initial grant of monopoly, designed primarily to encourage creation, followed by termination of the monopoly grant in order to promote dissemination of already-created works. It assumes that it is the disappearance of the monopoly grant, not its perpetuation, that will, on balance, promote the dissemination of works already in existence. This view of the Clause does not deny the empirical possibility that grant of a copyright monopoly to the heirs or successors of a long-dead author could on occasion help publishers resurrect the work, say, of a long-lost Shakespeare. But it does deny Congress the Copyright Clause power to base its actions primarily upon that empirical possibility lest copyright grants become perpetual, lest on balance they restrict dissemination, lest too often they seek to bestow benefits that are solely retroactive.

His argument is confused and tautological and highly disingenuous. It's confused because Congress cannot just grant rights to those who merely act as publishers - only to authors. So the whole paragraph is a mess to begin with. Could Congress "grant ... a copyright monopoly to the heirs or successors of a long-dead author?" An interesting fine point, but the real question is: Could Congress grant a copyright to a living author whose copyright has lapsed or never existed - like Stravinsky? Of course Congress can do that. But Justice Breyer doesn't dare address the actual point: not "publishers", not "heirs" - his approach would prohibit protection of real living authors, like Stravinsky, who was actually screwed by Disney over the Rite of Spring's use in Fantasia exactly because the then-still-very-much-alive Stravinsky had no American copyright in it. Does Justice Breyer or Professor Lessig think the Constitution prohibits Congress from fixing that? Do they think all notions of "unjust enrichment" were squeezed out of the Copyright Clause and rendered constitutionally "irrational?" Apparently they do - although Justice Breyer doesn't have the honesty to just come out and say it. (Professor Lessig flatly says: "The opinion of the Court gives no support to restoring copyrights once expired," which is just wrong.) They are both wrong. And I have seen nothing that proves that the Framers intended to enact these particular theories of these two men.

Worse, Justice Breyer's argument is tautological, and the majority rightly rejects it. The Copyright Clause requires that the copyright monopoly be restricted to "limited times." That means Congress will have to revisit the extension of the monopoly repeatedly if expiration is to be avoided – which is exactly what Congress has been doing from time to time since 1790. On each revisit, Congress has to pass a bill extending the monopoly for another limited period - and each such extension must satisfy the same constitutional requirements. The Clause does not say that the monopoly must ever in fact expire, although each extension must comply with the "limited times" requirement and not be a disguised attempt to avoid it. It may become harder and harder with each extension to justify a further extension - but nothing in principle rules that out. In short, Justice Breyer just made that part up because it yields his desired conclusion as a nice tidy tautology.