Cheers,
— jra

” ‘God!’ he cries, dying alone on Mars, ‘We made it!’ “

Indeed it is. And I was quite impressed by his exposition here. But even moreso by the tenor of (the majority of) the comments here, which, if I were him, I wouldn’t have read. Understandable that he’s nervous enough about how it goes. But even given that I’m struck by the framing and phrasing of the compliments here. Very nicely done, given his send off, folks.

Cheers,
— jra

Both Rehnquist and Breyer seemed to be concerned about revoking a power that Congress has so often exercised.

The Chief Justice observed that if Congress has so often extended copyrights, and no one has ever challenged their right to do so, that must surely be significant.

And Justice Breyer observed that if CTEA is overturned, then by no principled argument could the 1976[?] Act survive, or indeed any prior extension that delayed already-copyrighted works’ entry into the public domain. Justice Breyer referred to the “chaos” that would ensue.

And unfortunately, I think that some version of the Rehnquist/Breyer argument will prevail. Either the Court will hold that it is unwilling to revoke a power that, for over 200 years, no one has disputed that Congress had. Or, the Court will hold that overturning CTEA (and, as it must, any/all earlier extensions that are still in force) would unsettle too many long-held economic assumptions.

I still believe that Prof. Lessig is right on the law. But I don’t think he persuaded five Justices. I expect a 6-3 defeat.

For example, a work published in 1980, but never registered with the Copyright Office, is currently protected. Under the original 1790 law, registration would have been required, and the copyright would have expired in 1994 unless renewed. Since the 1976 law was the law of the land in 1980 when the work was created, and thereby set the expectations of the author by way of incentive, the work deserves the protection its author expected. In my vision, Congress would pass a copyright reform bill in 2003 (or maybe 2004) which would retrospectively extend copyright to all works under the prospective rules at the time of creation. This would retrospectively grant a copyright to that 1980 work, expiring in 75 years or life plus 50 years, as appropriate. After this new reform bill is enacted, the court could lift its stay on the ruling, striking the unconstitutional laws while continuously protecting those works which should not yet be public domain.

In my view, this would be constitutional, since the retrospective extension of copyright would be to meet the expectations of the authors at the time of creation, to fulfill the public’s side of the “copyright bargain”. This is very different from granting a windfall to Disney and others to grant terms longer than originally expected by the author at the time of creation.

Devine Corzine’s comments above address several of the issues regaring the 1976 law that I was concerned about, and I share his feeling that all past retrospective copyright extensions should be deemed unconstitutional. I can see, however, grave problems for creators of works after 1976 who toiled in expectation that their works would be protected for at least their own lifetime.

Has there been any research into how many works would enter the public domain if the retrospective effects of the CTEA are overturned? If the retrospective effects of both the 1976 Copyright Act and the CTEA were overturned? Or, assuming that the prospective and retrospecive provisions are inseparable, if both laws were overturned in their entirety?

I think it would be unfair for authors since 1976 to unexpectantly lose their copyrights earlier than expected, but I also see no principled alternatives.