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O P E N L A W: Eldred v. Ashcroft

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* Eldred v. Ashcroft
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Congress has extended copyright terms eleven times in the last 40 years, each time further distorting the balance between private incentive and enrichment of the public domain. When the Sonny Bono Copyright Term Extension Act added 20 years to existing and future copyrights, Eric Eldred and other commercial and non-commercial users of public domain works sued.

January 15, 2003: Supreme Court Upholds Term Extension, 7-2
PDF: syllabus, majority opinion (Ginsburg), Stevens dissent, Breyer dissent
HTML: syllabus, majority opinion (Ginsburg), Stevens dissent, Breyer dissent (Thanks, Lisa

This case, and the Openlaw forum, are just the beginning of a broader movement to reassert the public side of the copyright bargain.

On October 9, 2002, the United States Supreme Court heard oral argument that the CTEA is unconstitutional. Transcripts of the argument are now available.

Thanks from the Openlaw team to everyone who has helped us get here. Copyfight is collecting reports from the argument, including first-hand recollections fromnumerous participants.

Editorial support and regret from the New York Times:

Copyright law requires a balancing of the interest of copyright holders against the rights of everyone else. Artists are entitled -- despite the arguments of Napster and its defenders -- to a property interest in their work for a reasonable period of time. But the public also has an interest in seeing that copyrights eventually lapse, and that creative work enters the public domain with no need to pay royalties. Contemporary artists are then free to borrow from these older works, a creative tradition that dates back to the ancients.


The purpose of the 1998 Congressional extension was not protecting artists, but enriching media companies that hold property rights in their creations, virtually in perpetuity. The founders did not envision copyright being put to this use, and the Supreme Court should not allow it.


1. Did the D.C. Circuit err in holding that Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?

2. Is a law that extends the term of existing and future copyrights "categorically immune from challenge[] under the First Amendment"?

Legal Filings: Read our opening brief and the numerous amici ("friends of the court") supporting Eldred's case -- including multiple Nobel laureate economists, the Free Software Foundation, constitutional and IP law profs, the American Library Association, the Eagle Forum, the American Historical Association, distinguished historians, and Intel Corp. An amazing group of people and institutions spanning the ideological and sectoral spectrums.

How much is the copyright extension worth to a present-day author? Use this online extension calculator to see.

Eric Eldred and we at the Berkman Center think the Sonny Bono Act robs the American public of the rich and diverse public domain guaranteed by the Constitution. If you would like to help us reclaim that public space, first register and then come collaborate. See also the companion case of Golan v. Ashcroft.

(To visit without registering, sign in as "guest", password "guest".)

Mark S. Nadel asks whether copyright still promotes creativity: Questioning the Economic Justification for (and thus Constitutionality of) Copyright Law's Prohibition Against Unauthorized Copying: sec. 106 (draft)

Loyola of Los Angeles Law Review Posts Symposium Issue on Eldred v. Ashcroft: Intellectual Property, Congressional Power, and the Constitution

Wendy Seltzer
Berkman Center for Internet & Society