Eldred v. Ashcroft, 537 U.S. 186 (2003) challenged the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act (CTEA). Oral argument was heard on October 9, 2002, and on January 15, 2003, the court held the CTEA constitutional by a 7-2 decision.
The practical result of this was to prevent a number of works from entering the public domain in 1998 and following years, as would have occurred under the Copyright Law of 1976. Materials which the plaintiffs had worked with and were ready to republish were now unavailable due to copyright restrictions.
The lead petitioner, Eric Eldred, is an Internet publisher. Eldred was joined by a group of commercial and non-commercial interests who relied on the public domain for their work. These included Dover Publications, a commercial publisher of paperback books; Luck's Music Library, Inc., and Edwin F. Kalmus & Co., Inc., publishers of orchestral sheet music; and a large number of amici including (but not limited to) the Free Software Foundation, the American Association of Law Libraries, and the College Art Association.
Supporting the law were the U.S. government, represented by the Attorney General in an ex officio capacity (originally Janet Reno, later replaced by John Ashcroft), along with a set of amici including (but not limited to) the Motion Picture Association of America, the Recording Industry Association of America, ASCAP and Broadcast Music Incorporated.
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (emphasis added)Plaintiffs argued that by reading this formulation so as to allow for any number of retroactive extensions, Congress could in practice guarantee an unlimited period of copyright protection, thus thwarting the intent of the clause.
In response, the government argued that Congress does indeed have the latitude to retroactively extend terms, so long as the individual extensions are also for "limited times," as required by the Constitution. As an argument for this position, they referred to the Copyright Act of 1790, the first Federal copyright legislation, which applied Federal protection to existing works. Furthermore, they argued, neither the First Amendment nor the doctrine of public trust is applicable to copyright cases.
On October 28, 1999, Judge June Green issued a brief opinion rejecting all three of the petitioners' arguments. On the first count, she wrote that Congress had the power to extend terms as it wished, as long as the terms themselves were of limited duration. On the second count, she rejected the notion of First Amendment scrutiny in copyright cases, based on her interpretation of Harper and Row Publishers, Inc., v. Nation Enterprises, an earlier Supreme Court decision. On the third count, she rejected the notion that public trust doctrine was applicable to copyright law.
Instead, the plaintiffs extended their argument on the copyright clause to note that the clause requires Congress to "promote the Progress of Science and useful Arts," and argued that retroactive extensions do not directly serve this purpose in the standard quid pro quo previously required by the courts.
The case was decided on February 16, 2001. The appeals court upheld the decision of the district court in a 2-1 opinion. In a forceful dissent, Judge David Sentelle agreed with the plaintiffs that CTEA was indeed unconstitutional based on the "limited Times" requirement. Supreme Court precedent, he argued, held that one must be able to discern an "outer limit" to a limited power; in the case of retrospective copyright extensions, Congress could continue to extend copyright terms indefinitely through a set of limited extensions, thus rendering the "limited times" requirement meaningless.
Lessig refocused the Plaintiffs' brief to emphasize the Copyright clause restriction, as well as the First Amendment argument from the Appeals case. The decision to emphasize the Copyright clause argument was based on both the minority opinion of Judge Sentelle in the appeals court, and on several recent Supreme Court decisions authored by Chief Justice William Rehnquist: United States v. Lopez and United States v. Morrison.
In both of those decisions, Rehnquist, along with four of the Court's more conservative justices, held Congressional legislation unconstitutional, because said legislation exceeded the limits of the Constitution's Commerce clause. This profound reversal of precedent, Lessig argued, could not be limited to only one of the enumerated powers. If the court felt that it had the power to review legislation under the Commerce clause, Lessig argued, then the Copyright clause deserved similar treatment, or at very least a "principled reason" must be stated for according such treatment to only one of the enumerated powers.
On January 15, 2003, the Court held the CTEA constitutional by a 7–2 decision. The majority opinion, written by Justice Ginsburg, relied heavily on the Copyright Acts of 1790, 1831, 1909, and 1976 as precedent for retroactive extensions. One of the arguments supporting the act was the life expectancy has significantly increased among the human population since the 18th century, and therefore copyright law needed extending as well. However, the major argument for the act that carried over into the case was that the Constitution specified that Congress only needed to set time limits for copyright, the length of which was left to their discretion. Thus, as long as the limit is not "forever," any limit set by Congress can be deemed constitutional.
A key factor in the CTEA’s passage was a 1993 European Union (EU) directive instructing EU members to establish a baseline copyright term of life plus 70 years and to deny this longer term to the works of any non-EU country whose laws did not secure the same extended term. By extending the baseline United States copyright term, Congress sought to ensure that American authors would receive the same copyright protection in Europe as their European counterparts.
The Supreme Court declined to address Lessig's contention that Lopez and Morrison offered precedent for enforcing the Copyright clause, and instead reiterated the lower court's reasoning that a retroactive term extension can satisfy the "limited times" provision in the copyright clause, as long as the extension itself is limited instead of perpetual. Furthermore, the Court refused to apply the proportionality standards of the Fourteenth Amendment or the free-speech standards in the First Amendment to limit Congress's ability to confer copyrights for limited terms.
Justice Breyer dissented, arguing that the CTEA amounted to a grant of perpetual copyright that undermined public interests. While the constitution grants Congress power to extend copyright terms in order to "promote the progress of science and useful arts," CTEA granted precedent to continually renew copyright terms making them virtually perpetual. Justice Breyer argued in his dissent that is highly unlikely any artist will be more inclined to produce work knowing their great-grandchildren will receive royalties. With regard to retroactive copyright extension he viewed it foolish to apply the government's argument that income received from royalties allows artists to produce more work saying, "How will extension help today’s Noah Webster create new works 50 years after his death?"
In a separate dissenting opinion, Justice Stevens also challenged the virtue of an individual reward, analyzing it from the perspective of patent law. He argued that the focus on compensation results only in “frustrating the legitimate members of the public who want to make use of it (a completed invention) in a free market.” Further, the compelling need to encourage creation is proportionally diminished once a work is already created. Yet while a formula pairing commercial viability to duration of protection may be said to produce more economically efficient results in respect of high technology inventions with shorter shelf-lives, the same perhaps cannot be said for certain forms of copyrighted works, for which the present value of expenditures relating to creation depend less on scientific equipment and research and development programmes and more on unquantifiable creativity.
Lessig expressed surprise that no decision was authored by Chief Justice Rehnquist or by any of the other four justices who supported the Lopez or Morrison decisions. Lessig would later regret basing his defence on legal arguments based on precedent, rather than attempting to demonstrate that the weakening of the public domain would cause harm to the economic health of the country.