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The article seeks to clarify what is at stake - and what is not - in the litigation challenging the constitutional validity of the Sonny Bono Copyright Term Extension Act (CTEA). First, the article distinguishes between the CTEA's retrospective term extension of copyright term and the retrospective extensions enacted by prior Congresses. The article suggests that the CTEA provisions are constitutionally questionable in ways that earlier retrospective extensions may not have been. To hold the CTEA unconstitutional would not make all other term extensions vulnerable.

Second, the article shows how non-creative physical activities such as digitization and film preservation have public goods characteristics that did not attach to equivalent physical activities (such as typesetting) in the eighteenth century. The article argues that, nevertheless, no expansion of the Copyright Clause is triggered by this new susceptibility to free riding.

The Constitution does not treat all public goods problems similarly. For example, the Constitution singles out only some public goods for federal concern (e.g., national defense), while leaving others to state and local discretion. Implicit in the Supreme Court's existing jurisprudence is a finding that the Copyright Clause of the Constitution treats the free-rider problems faced by non-creative public goods (such as digitization and restoration of old media) differently from the free-rider problems faced by creative public goods (such as works of authorship). The article argues that the Copyright Clause is exclusively or primarily concerned with providing remedies for the latter. The article thus suggests that the CTEA's retrospective extension embodies a constitutionally impermissible tradeoff because it uses federal power to gain - at most - some encouragement for non-creative activity, while discouraging the creative activity with whose encouragement Congress was originally entrusted.

In addition, the article reviews and expands on the usual economic arguments for limiting the duration of intellectual property. In particular, the article uses the Nirvana Fallacy to show the dynamics that can hide behind the usual unitary notion of "deadweight loss," and recasts another phrase from the language of economics - the "increased costs of creation" - in a way that makes clear the aesthetic and psychological costs imposed by a long copyright.


Symposium on Eldred v. Ashcroft

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