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FC: DC circuit court rules copyright extension act is constitutional
From: Declan McCullagh <declan () well com>
Date: Fri, 16 Feb 2001 12:58:04 -0500

[From a source who wished to remain anonymous]

Without attribution you might want to let your list know about today's decision in Eldred v. Reno, the constitutional challenge to the CTEA. The case was argued by Lessig.

It's on-line at:


Here's an excerpt from the majority's opinion, written by Judge Ginsburg:

     In sum, we hold that the CTEA is a proper exercise of the
Congress's power under the Copyright Clause.  The plain-
tiffs' first amendment objection fails because they have no
cognizable first amendment interest in the copyrighted works
of others.  Their objection that extending the term of a
subsisting copyright violates the requirement of originality
misses the mark because originality is by its nature a thresh-
old inquiry relevant to copyrightability, not a continuing
concern relevant to the authority of the Congress to extend
the term of a copyright.

     Whatever wisdom or folly the plaintiffs may see in the
particular "limited Times" for which the Congress has set the
duration of copyrights, that decision is subject to judicial
review only for rationality.  This is no less true when the
Congress modifies the term of an existing copyright than
when it sets the term initially, and the plaintiffs -- as
opposed to one of the amici -- do not dispute that the CTEA
satisfies this standard of review.  The question whether the
preamble of the Copyright Clause bars the extension of
subsisting copyrights -- a question to which the analysis in
Schnapper seems to require a negative answer -- may be
revisited only by the court sitting en banc in a future case in
which a party to the litigation argues the point.

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