Copyright's Commons


Legal Background
Legal Documents
in the News
Copyright's Commons
Moot Court

As part of our effort to strengthen the public domain, Copyright's Commons joined as a plaintiff in the Eldred v. Reno case challenging the recent Copyright Term Extension Act (commonly known as the "Sonny Bono Act"). For an excellent article summarizing the case, check out the August 28, 1999 feature in the Boston Globe.

Click Mickey to read the story...

Current Status of the Case

On April 2, plaintiffs took the next step in Eldred v. Reno by filing a petition for rehearing en banc before the entire DC Circuit. The petition argues that the 2-1 panel decision issued in February misconstrued the applicable DC Circuit and Supreme Court law and failed to properly consider the arguments of amici. A copy of the petition is available in either PDF or HTML format. (Note that with the change of administration, Eldred v. Reno is now known as Eldred v. Ashcroft).

On February 16, the DC Circuit handed down its decision in Eldred v. Reno, rejecting our claim that the Sonny Bono Copyright Term Extension Act is unconstitutional. In a 2-1 decision, the court held that retroactive term extensions are within Congress' authority under the Copyright Clause, and that the 20-year term extensions did not violate the First Amendment. The majority's opinion, written by Judge Ginsburg, is available in full here; a summary is available here. A spirited dissent by Judge Sentelle recognized the merits of our argument, as well as those of amicus curiae The Eagle Forum, concluding that retroactive extensions are beyond the 'outer limits' of congressional authority under the Copyright Clause. An appeal is underway, in which we will either seek a rehearing en banc in the DC Circuit, or bypass that step and appeal directly to the Supreme Court.

On October 5, 2000 Larry Lessig argued our appeal before the D.C. Circuit Court of Appeals. The transcript of the oral argument is now available in HTML or PDF format.

In preparation for his oral argument on Eldred's behalf, Stanford Law professor Larry Lessig participated in a moot court at Harvard Law School on October 2. Harvard professors David Barron, William W. Fisher III, and Charles Fried served as judges for the event, and New York civil rights lawyer Richard Emery argued the government's position. A video of that event will also be made available here soon.
We filed our final response brief with the D.C. Circuit on August 7, 2000.

In July, the government responded to our appeal by filing this brief with the D.C. Circuit.

On May 22, 2000, Copyright's Commons joined Eric Eldred in filing this brief to appeal the District Court's decision against us.

District Court Opinion - On October 28, 1999, Judge June Green granted summary judgment to the government in a brief opinion dismissing the plaintiffs' arguments. The court made three specific rulings:

1) that the Copyright Term Extension Act does not violate the First Amendment because there is no First Amendment right to use the copyrighted works of others;

2) that the retrospective extension of the Act is within Congress's power under the Copyright Clause of the Constitution because the "limited times" period is subject to the discretion of Congress and an author may agree in advance to transfer any future benefit Congress might confer; and

3) that the Act does not violate the public trust doctrine because that doctrine applies only to navigable waters.

An appeal of this decision is underway.

Legal Arguments

The plaintiffs in Eldred v. Reno believe that the Sonny Bono Act robs the American public of the rich and diverse public domain guaranteed by the Constitution. For an in-depth look at the legal arguments in the case, visit the legal background and the legal documents links.

Michael Davis, professor of law at Cleveland State University, has written an article arguing that the CTEA is unconstitutional. His article, based on legal arguments different from those expressed in our briefs, will appear soon in the Florida Law Review. Professor Davis has provided Copyright's Commons with this summary. Feel free to email him for more details.

Effect on the Public Domain

Under the copyright regime existing before the Sonny Bono Act, works created by individuals, say J. D. Salinger or Elvis Presley, enjoyed protection for the life of their creators plus an additional 50 years. Works created by so-called "corporate authors," such as Disney and the New York Times, received protection for 75 years from the date of their creation. The Sonny Bono Act adds 20 years to both terms of protection, giving individual authors protection for life plus 70 years and corporate authors protection for 95 years. Thus, a symphony created by a 5 year-old modern Mozart who lives to be 85 will not be available in the public domain for the first 150 years of its existence. Visit, a site that documents all renewals of 1923 book copyrights-- works that helped define the twentieth century and would have entered the public domain this year.


In keeping with the spirit of the public domain, Eldred v. Reno is being litigated in an openlaw format.If you would like to participate in the briefwriting process, first register and then collaborate on the openlaw site.

Last modified February 22, 2001 Berkman Center for Internet & Society