Lessig et al. Files Brief in Eldred Case (involving limitations on duration of copyrights)
I would encourage people to read the whole brief, but for those who don't want to here are some important snippets from the brief that was filed with the U.S. Supreme Court.
Who for example are the people challenging the law?
Well, there are several organizations. We tend to think of just Mr. Eldred, but there are others:
Most of the petitioners are commercial entities that build upon the public domain. Best known in this group is Dover Publications, a large-scale publisher of high-quality paperback books, including fiction and children’s books. J.A. 18-19. Prior to CTEA, Dover had planned to republish a number of works from the 1920’s and 1930’s, including “The Prophet” by Kahlil Gibran and “The Harp-Weaver” by Edna St. Vincent Millay. J.A. 19. CTEA has delayed the entry of these works into the public domain by 20 years.
What sorts of reasons do the challengers give to attack the law extending copyright protection?
Basically, two reasons. First, the law is unconstitutional because it violates the provision of the Constitution that says that, while Congress can grant copyrights to promote the "arts and useful sciences," it can only do so for "limited times." Second, the extension hampers free speech and therefore violates the First Amendment. While the second reason sounds good to most non-lawyers, the first reason probably has a better chance of appealing to the Justices on the Court. Here is an excerpt from the part of the brief that summarizes the legal arguments:
“The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803). This case is about one important limit on the legislature’s power that Congress has clearly forgotten.” The Copyright Clause gives Congress the power to “promote the Progress of Science,” by granting “exclusive Right[s]” to “Authors” “for limited Times.” U.S. Const. art. I, § 8, cl. 8. There is no mystery about what the Framers had in mind for the duration of copyright—they expected it would be “short” so that after a “short interval,” creative work would pass into the public domain “without restraint.” [citation omitted] Nor is there any doubting the Framers’ fear about the power that they were creating: the resolution against monopolies was as strong in the framing generation as in any time since; they, more than we, were keenly sensitive to the dangers of state-backed monopolies. But their hope was that the government might help spur learning and innovation. And to balance their hope against their fears, the Framers crafted the most carefully circumscribed power within Article I, § 8. The Copyright Clause is the only power in Article I that specifies both its ends—”to promote the Progress of Science”—and also its means—”by securing for limited times . . . exclusive Right[s].” Monopolies were to be allowed, but only to “promote [] Progress.” Congress has now found a way to evade this constitutional restraint. Rather than granting authors a fixed (i.e., “limited”) term of copyright, Congress has repeatedly extended the terms of existing copyrights—eleven times in the past forty years.
Like I said, I would encourage everyone to read the whole brief. This is an important case, and hopefully this brief (which is the product of many fine lawyers, and not just Larry Lessig) will have a strong impact.
10:26:18 PM 
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