January 15, 2003

Bad bits from the Eldred opinion

As I read, I've been picking out bad bits from the Eldred losing majority opinion. There's many of those.

"limit times" means finite-yet-unbounded:

I call this a "legal hack" :

Petitioners contend that even if the CTEA's 20-year term extension is literally a "limited Tim[e]," permitting Congress to extend existing copyrights allows it to evade the "limited Times" constraint by creating effectively perpetual copyrights through repeated extensions. We disagree.

As the Court of Appeals observed, a regime of perpetual copyrights "clearly is not the situation before us." 239 F. 3d, at 379. Nothing before this Court warrants construction of the CTEA's 20-year term extension as a congressional attempt to evade or override the "limited Times" constraint.16 Critically, we again emphasize, petitioners fail to show how the CTEA crosses a constitutionally significant threshold with respect to "limited Times" that the 1831, 1909, and 1976 Acts did not. ...

It's up to Congress:

The CTEA reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature's domain. As respondent describes, see Brief for Respondent 37 n. 38, a key factor in the CTEA's passage was a 1993 European Union (EU) directive instructing EU members to establish a copyright term of life plus 70 years. EU Council Directive 93/98, p. 4; see 144 Cong. Rec. S12377 n. S12378 (daily ed. Oct. 12, 1998) (statement of Sen. Hatch).

Retroactivity is fine:

On the issue of copyright duration, Congress, from the start, has routinely applied new definitions or adjustments of the copyright term to both future works and existing works not yet in the public domain.19 Such consistent congressional practice is entitled to "very great weight, and when it is remembered that the rights thus estab- lished have not been disputed during a period of [over two] centur[ies], it is almost conclusive."

By Seth Finkelstein | posted in copyblight | on January 15, 2003 01:44 PM (Infothought permalink) | Followups
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