(e) Eldred v. Ashcroft

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News

A list of articles concerning the case

Supreme Court Opening Briefs Filed May 20, 2002:

Supreme Court Grants Certiorari, February 19, 2002

The Supreme Court has announced it will hear our challenge to the Copyright Term Extension Act. Thanks from the Openlaw team to everyone who has helped us get here.

LawMeme reports on Yale Moot Court's Eldred v. Ashcroft: Eldred wins. Petitioners' winning brief, Chimene Keitner and Travis LeBlanc.

April 14, 2002 -- The ABA Board of Governors has voted not to file an amicus brief opposing our position. The Chair of the Intellectual Property Section had urged the board to support perpetual copyright.

February 25, 2002 -- This case could reinvigorate the public domain. If you intend to file an amicus brief in Eldred v. Ashcroft, please contact Jonathan Zittrain, zittrain@law.harvard.edu.

Petitioners consent to the filing of all amicus briefs.

The role of an amicus brief (PDF)

Progressive Intellectual Property Law Association and Union for the Public Domain amicus brief, Professor Michael H. Davis

Outline of College Art Association amicus

News Reports:
As a result of the court's action, a challenge to the Sonny Bono Copyright Term Extension Act that many had regarded as fanciful suddenly emerged as potentially the most important copyright case in decades.

Contacts: Lawrence Lessig, Charles Nesson, Jonathan Zittrain, Geoffrey Stewart.

Editorial support for Eldred v. Ashcroft:

Term Limits for Copyrights, Steve Forbes, Forbes.com, April 2002
It is fitting and proper that your creations be protected by law for your lifetime and a reasonable period afterward. But there is no justification for what Congress has been doing: transforming a limited monopoly into an unlimited one. Creativity and culture are enhanced by having works ultimately become public domain, particularly with the advent of the Internet.... The high court would be right to rule that enough is enough and should knock down that 1998 law.
Drawing a line on copyright, St. Petersburg Times, August 21, 2001
[T]he founders included the term "for limited times" to alert Congress that copyright protection is not permanent. The public at-large has an interest in gaining access to, enjoying and building on the works of artists, authors, scientists and inventors.
Copyright Craziness, Washington Post August 17, 2001
As a policy matter, [Eldred v. Ashcroft] isn't difficult at all. Vast quantities of creative material shouldn't be perpetually owned privately, and Congress's repeated extensions of protection to copyright holders have shredded any meaningful limit. The plaintiffs plan to ask the Supreme Court to examine the issue. It would be well worth the justices' time.

Eleventh Circuit Issues Opinion on The Wind Done Gone, October 10, 2001

The Eleventh Circuit Court of Appeals, which had already lifted the injunction against Alice Randall's parody of Gone With the Wind, explained its ruling in an opinion. The opinion presents "protection of the public domain" as one of the chief goals of American copyright law.
The Copyright Clause was intended "to be the engine of free expression." Harper & Row Publishers, Inc. v. Nation Enters. To that end, copyright laws have been enacted [to] achieve the three main goals: the promotion of learning, the protection of the public domain, and the granting of an exclusive right to the author.

[...]

The second goal of the Copyright Clause is to ensure that works enter the public domain after an author's rights, exclusive, but limited, have expired. Parallel to the patent regime, the limited time period of the copyright serves the dual purpose of ensuring that the work will enter the public domain and ensuring that the author has received "a fair return for [her] labors." This limited grant "is intended to motivate the creative activity of authors . . . by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired." The public is protected in two ways: the grant of a copyright encourages authors to create new works, ... and the limitation ensures that the works will eventually enter the public domain, which protects the public's right of access and use.

D.C. Circuit Denies En Banc Rehearing, July 13, 2001

Judges Sentelle and Tatel dissented.

Eleventh Circuit Lifts Injunction From Wind Done Gone

The Eleventh Circuit Court of Appeals lifted the injunction on The Wind Done Gone, calling the copyright injunction an ``extraordinary and drastic remedy'' that ``amounts to an unlawful prior restraint in violation of the First Amendment.'' See the Eleventh Circuit's Order (PDF).

So, the First Amendment constrains copyrights in the Eleventh Circuit, while in D.C., "copyrights are categorically immune from First Amendment scrutiny." Eldred v. Reno

  • Houghton Mifflin website with additional materials on The Wind Done Gone.

    Extended Copyright Used to Block Parody and Social Commentary: The Sense Done Gone

    The estate of Margaret Mitchell is using the extended copyright on Gone With the Wind in an attempt to block publication of Alice Randall's The Wind Done Gone, a novel written from the perspective of Scarlett O'Hara's slave-born half-sister. Under the 56-year copyright term in effect when Mitchell wrote the book, the world of Tara should have become public domain in 1993.

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