Copyright

The court case Eldred v. Ashcroft, 537 U.S. 186 (2006) illustrates how powers, once granted to the U.S. Government (in this case Congress with respect to the duration of copyrights), are almost impossible to take away. The more government is allowed to intervene in the lives of citizens, the harder it is to not only reverse those interventions but also to stop future ones. There seems to be a point of no return.


In Eldred v. Ashcroft the majority opinion justifies the constitutionality of retroactive extensions by arguing that “(1) the first Copyright Act enacted shortly after the Constitution was ratified applied to the works that had already been produced; (2) later Congresses have repeatedly authorized extensions of copyrights and patents; (3) such extensions promote the useful arts by giving copyright holders an incentive to preserve and restore certain valuable motion pictures; (4) as a matter of equity, whenever Congress provides a longer terms as an incentive to the creation of new works by authors, it should provide an equivalent reward to the owners of all unexpired copyrights.” None of these arguments are convincing. Reasons (1) and (2) are invalid as they imply that because something was done a certain way in the past, it should be done that way in the present. Reasons (3) and (4) are easily dismissed in Justice Steven’s dissent. The Court should have checked the power of Congress to retroactively implement an extension – they should have done so not so much as a practical consideration but as one of principle.


Another interesting thing to think about is what an ideal copyright system would look like. If there had been no change implemented in 1976, what would the system look like today? Would we be satisfied with it?