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In Eldred v. Ashcroft, the Supreme Court correctly sustained Congress’ authority to enact the Copyright Term Extension Act of 1998, which extended by 20 years the terms of copyright protection. Professor Lawrence Lessig, counsel of record for the challengers in Eldred, has expressed a steadfast belief that the seven justices in the Eldred majority blundered, opining in his Internet “blog” on the day of the court’s decision that the constitutional question “is not even close.” But Lessig ultimately assumes that the emergence of digital technology has unraveled two centuries of our constitutional tradition. It has not. The Internet has no more fundamentally reshaped the Constitution’s allocation of power between the legislative and judicial branches than did the VCR or audiotape. In acknowledging the judiciary’s limited role in second-guessing Congress’ judgments concerning the costs and benefits of copyright term extensions, the Supreme Court in Eldred quite properly reaffirmed that the framers vested in Congress — and not in the courts — the authority to make fundamental copyright policy decisions. In Eldred, the challengers argued that, because the CTEA protects not just future works but also existing ones (that is, those already created when the statute was enacted, it violated the Copyright Clause found in Article 1 of the Constitution, as well as the First Amendment. The syllogism at the heart of their challenge was that Congress may only grant “this” (term extension) for “that” (the creation of a new work). In their view, term extension for existing works necessarily violated this quid pro quo principle by granting the “this” without any new creative “that.” Writing for a 7-2 majority, Justice Ruth Bader Ginsburg disagreed, noting that every congressional extension of copyright since the nation’s founding — including an act of the first Congress in 1790 — has protected both future and existing works. During the 200-plus years that have passed since that original congressional act, no court has ever held that Congress exceeded its power in protecting existing, as well as future, works. Given this clear, unbroken history, the challengers in Eldred always faced an uphill battle in grounding their argument in constitutional law. They partly tailored their theory to argue that copyright today exists in “changed circumstances” from those that existed at the time of the nation’s birth. Because the digital age has breathed new life into a now-vibrant public domain, this argument went, copyrighted works should arrive there sooner rather than later. Even on its own terms, this theory is incorrect. Indeed, the emergence of new technology permitting the rapid and inexpensive “copying” of creative works calls for heightened — not reduced — attention to the protections of copyright law. Absent robust protections, incentives to create can quickly disappear, given the low-cost, high-dose infringement that can occur via the Internet. Copyright law should also provide authors with every incentive to make the high-cost investment of adapting high-quality works to the digital world, as well as creating new works for the digital world. More important, the effect of changes in technology on the proper term of copyright raises political questions, not legal ones. The Eldred majority properly saw much of the challengers’ theory as a policy disagreement with Congress’ judgment in enacting the CTEA rather than as a legal argument calling into question the structural legitimacy of a power Congress has exercised for more than two centuries. In enacting the CTEA, Congress ultimately concluded that the United States should keep pace with the emerging international standard for longer copyright terms. The legislation also recognized that, as the average lifespan continues to increase, authors should see the benefits of their creative works extend through one generation of heirs, something that copyright has always sought to accomplish. The CTEA secures these interests not only through extending the term of future works, but also through protecting existing works. This extension of existing copyrights provides several benefits, including: Broader dissemination of copyrighted works. Dissemination, particularly in the digital world, requires considerable investment by a copyright holder. A copyright holder nearing the end of a copyright term may choose not to make the investment to disseminate the original work in new digital media, such as DVDs. Incentives for existing copyright holders to create important “derivative,” or spinoff, works. Congress concluded that the public is more likely to see high-quality derivative works based on copyrighted works made under authorization from the copyright owner. Added resources for authors, which can be used to support future creative works. Very few domestic authors earn significant income from their creative works, and a copyright regime that fails to provide adequate compensation has a chilling effect on creative expression. Incentives for copyright holders to preserve existing works. Preservation enhances the long-term volume and viability of works ultimately falling into the public domain. Enticements for authors to remain at home. Congress recognized that authors must remain confident that domestic copyright is as fully robust as the protections afforded copyright elsewhere in the world. Domestic copyright is one of America’s most valuable assets, contributing more than $300 billion to the economy each year and employing more than 6 million people. More fundamentally, the Supreme Court rejected the challengers’ sharp focus on the micro-level details of the CTEA. Instead, the majority opinion viewed the extension of existing works as a rational part of an overall scheme designed to promote progress. Justice Ginsburg saw no problem with Congress seeking to treat existing and future copyright holders “evenhandedly” in enacting copyright legislation, as it has done for two centuries. Lessig has also suggested that the Eldred majority failed to insist on an interpretation of the Copyright Clause that sets any outer limits on exercises of congressional power. He views Eldred as incompatible with prior decisions of the Rehnquist court, particularly United States v. Lopez, that have invalidated federal legislation when the government’s theory has failed to set any principled limits. Indeed, in the challengers’ petition for rehearing in Eldred, which the Supreme Court denied on March 10, Lessig stopped just short — if at all — of accusing the majority of outright bad faith and expressly labeled the opinion a violation of the “rule of law.” As Lessig also asked rhetorically in one of his blog entries, “Is there a principle here?” For four reasons, there is just such a principle. First, cases like Lopez involved exercises of congressional power under the Commerce Clause, not the Copyright Clause. This distinction matters much to the Supreme Court. The Lopez ruling held that the Commerce Clause, if not cabined, offers Congress a “police power” — a power to do whatever it wants. Not all congressional powers are even conceivably of that ilk: a theory that sets a clear limit on Congress’ power to “coin money” (is $5 million too much? $500 million?), for example, is hardly required to prevent Congress from exercising a police power over citizens nationwide. So, too, with the Copyright Clause. It gives Congress narrow power to offer authors the rights to exploit their original creative works for “limited times.” Those built-in limitations make inapposite any analogy to the Commerce Clause, even if, within those horizontal limitations, Congress has significant vertical power to set the parameters of copyright scope and duration. Second, the Supreme Court has consistently viewed congressional enactments under the Commerce Clause within the world of competing sovereigns, holding that federal legislation adopted under tenuous theories of the clause may supplant corresponding exercises of state power. In Lopez, the court refused to endorse a theory vesting in Congress wholesale power to supplant traditional areas of state sovereignty, such as the law governing family relations, crime and punishment, and education. Copyright law does not implicate this perceived zero-sum game, and the Eldred challengers’ “this for that” rule was unneeded in the court’s view to protect the states from an overreaching Congress. Third, Lessig ignores the difference between a conceptual limit and one that Congress has actually exceeded in a particular case. Borrowing Justice Potter Stewart’s terms from the obscenity doctrine, Lessig makes no room for the principle that “I know it when I see it.” That the Supreme Court in Lopez found that Congress had actually crossed the line does not, of course, mean Congress did the same in adopting the CTEA. Indeed, Lessig argued in Eldred that the CTEA was an effort to “evade” the “limited times” requirement. But the court concluded otherwise, finding that the CTEA appropriately responded to pressing international and demographic trends. In Lopez, the Supreme Court simply knew unlimited power when it saw it. The majority saw something else entirely in Eldred: a vigorously debated law that furthered the goals of copyright law without itself constituting a perpetual copyright term. Finally, Lessig’s argument ignores the fact that the justices he has dubbed “the Silent Five” — those who have insisted on clear limits in the Commerce Clause context (Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy and Thomas) but voted with the majority in Eldred — were pulled by core components of their judicial philosophies in different directions in Eldred. In Lopez, for example, the challengers did not ask the Supreme Court to create a categorical rule; in Eldred, they did. But two members of the “Silent Five” — Justice O’Connor and, to a lesser extent, Justice Kennedy — have tended to reject strict rules, instead favoring standards that permit more flexibility from the court over time. The challengers’ categorical “this for that” theory, which would invalidate a one-day extension of existing copyright but would say nothing about a 1,000-year extension of future copyright, fit the bill as an inflexible rule placing a straightjacket on Congress, not to mention later Supreme Court decisions. The other three members of Lessig’s “Silent Five” — Chief Justice Rehnquist and Justices Scalia and Thomas — generally look to history and tradition at the time of the nation’s founding in deciding matters of constitutional law. These are inclinations that, again, pulled entirely against the Eldred challengers. Lessig ignores these competing jurisprudential underpinnings in asserting that Eldred cannot be squared with Lopez. Despite technological advances, the authority to promote progress by determining how best to provide incentives to authors to create original and derivative works and to disseminate and preserve those works — all in the face of an evolving and competitive international marketplace — lies with Congress and not the courts. In the end, the decision confronting the court in Eldred bordered on the mundane. The challengers, along with many of the parties who filed briefs in support of their position, fought their battle in Congress in 1997 and lost. The Supreme Court — quite properly — simply declined to intervene. Robert M. Schwartz is a partner in the Century City office of O’Melveny & Myers, where he co-chairs the firm’s entertainment/media litigation group. Matthew M. Shors, an associate in the firm’s office in Washington, D.C., practices in the appellate and complex litigation groups. The authors filed an amicus brief in Eldred v. Ashcroft on behalf of the bipartisan leaders of the House Judiciary Committee and its Intellectual Property Subcommittee.

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