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Here's an excellent summary of the Supreme Court decision
and the dissenting opinions, prepared by a colleague here. Justice Breyer's
dissent is not only very interesting, but important in the way it expresses the
decision's impact on all of us.
amalyah keshet
head of image resources & copyright management the israel museum, jerusalem www.imj.org.il ------------------------
Sent: Wednesday, January 15, 2003 8:14 PM
Subject: Eldred v. Ashcroft Below is a summary I quickly prepared, and the full text of the decision is available at http://www.supremecourtus.gov/opinions/02pdf/01-618pdf Justice Ruth Bader-Ginsburg wrote the opinion for 7 Justices (Justices Breyer and Stevens being in dissent). The overall reasoning is that Congress has the authority to extend copyright, that it does not overrule the "limited times" section in the Constitution, and that history proves this to be so (previous extensions over the past 2 centuries). She mentions that the incentive for doing so was the European extension, and she notes that this might not be the wisest legislation, but its none of the court's business to examine the wisdom of the case. She also rejects the free speech arguments, in familiar lines: that the framers saw no problem, that copyright and the first amendment have the same purpose, that the idea/_expression_ dichotomy, the fair use defense, and two narrow limitations in the CTEA "take care" of the free speech concerns. She did, however, state that the Court of Appeals comment that copyright is "categorically immune" was too wide. Justice Stevens' dissent focuses on the retroactive aspect of the statute: that it does not serve the purpose of the copyright clause. There is a lot of history in his opinion, and he is not excited by the fact that the court has never before overruled term extensions. Justice Breyer's dissent is more interesting. In his view, the CTEA is so unwise, that it is unconstitutional. His opinion focuses on the free speech argument .The Act, he says, is not pure economic regulation, but regulation of _expression_. He develops a "rationality" test of 3 prongs: 1. if the benefits of the statute are private not public, and 2. if the act threatens seriously to undermine the expressive value of copyright law, and 3. if it does not have any other constitutional objective, -- then it is unreasonable and hence unconstitutional. He then analyzes the Act accordingly, with - not surprisingly - a lot of economic calculations: it will impose costs, not serve as an incentive to create new works (since after 55 years only 2% of the works retain commercial value). Breyer also points that the statute does NOT create uniformity with the European system. Finally, he says what we all know, worth quoting: "It is easy to understand how the statute might benefit the private financial interests of corporations or heirs who own existing copyrights. But I cannot find any constitutionally legitimate, copyright- related way in which the statute will benefit the public. Indeed, in respect to existing works, the serious public harm and the virtually nonexistent public benefit could not be more clear." So, another battle is lost, not surprisingly, but nevertheless, disappointing. Dr. Michael
Birnhack
Faculty of Law, University of Haifa
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