August 13, 2002

Eldred v. Ashcroft: Could Congress Make Copyright Perpetual and Absolute If It Wanted to?

Could the Congress make copyright perpetual and absolute if it wanted to? Does the fact that intellectual property rights are established not by the common law but by the U.S. Constitution for the express purpose of promoting the arts and sciences have any bite today? The Supreme Court is actually going to decide this question next winter...

From my perspective, the most interesting thing is the seventeen economists who have lined up in support of the plaintiffs--who argue that Congress's power to establish intellectual property rights is limited. These seventeen are: George A. Akerlof, Kenneth J. Arrow, Timothy F. Bresnahan, James M. Buchanan, Ronald H. Coase, Linda R. Cohen, Milton Friedman, Jerry R. Green, Robert W. Hahn, Thomas W. Hazlett, C. Scott Hemphill, Robert E. Litan, Roger G. Noll, Richard Schmalensee, Steven Shavell, Hal R. Varian, and Richard J. Zeckhauser. I can imagine no other issue on which you could get those seventeen to agree.


Eldred v. Ashcroft This site collects material related to the constitutional challenge of the Sonny Bono Copyright Term Extension Act, which extended by 20 years both existing copyrights and future copyrights. Eric Eldred is the lead plaintiff on the case (for other plaintiffs, click here), and on May 20, 2002, opening briefs were filed in the Supreme Court. Arguments will be heard in the fall, and a decision is expected next spring...

Posted by DeLong at August 13, 2002 07:19 PM | TrackBack

Comments

Impressive panel.

Say ... who owns Coase's Theorem these days?

Posted by: on August 13, 2002 08:46 PM

So wait, what do you think? I count on my academic bloggers to tell me what to think on these heavyweight law and economics issues.

Posted by: Matthew Yglesias on August 14, 2002 08:39 AM

It's pretty clear that copyright cannot be made perpetual -- the relevant clause in the Constitution is:

"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"

(Not that this would necessarily stop the Rehnquist court...)

The key issue here, as I understand it, is whether Congress has made the term of copyright so long as to make a mockery of "limited Time".

Posted by: Curt on August 14, 2002 02:02 PM

There does seem to be a question whether the commerce clause trumps the intellectual property clause. Given how broadly the commerce clause has been read over time, it would seem that perpetual copyright could be grounded there...

But I am not a lawyer.

On the other hand, the Supreme Court does what it wants: being a lawyer doesn't seem to get you very far in understanding what the Supreme Court will do.

Posted by: Brad DeLong on August 15, 2002 07:47 AM

"George A. Akerlof, Kenneth J. Arrow, Timothy F. Bresnahan, James M. Buchanan, Ronald H. Coase, Linda R. Cohen, Milton Friedman, Jerry R. Green, Robert W. Hahn, Thomas W. Hazlett, C. Scott Hemphill, Robert E. Litan, Roger G. Noll, Richard Schmalensee, Steven Shavell, Hal R. Varian, and Richard J. Zeckhauser. I can imagine no other issue on which you could get those seventeen to agree"

So, where does Paul Krugman stand?

For that matter, where does Thomas Sowell

stand?

And, in passing, why does the one economist/columnist get so much more attention than the other? Surely not race?

I, being nobody in particular and untrained

in the dismal science, would like to see higher

royalties paid out over shorter periods for

most intellectual "properties". To put, for

instance, MS-DOS into the public domain, along

with Scrooge McDuck and Freon... but there

are no doubt good reasons not to do so.

Wish some newspaper pundit could explain to

me what those reasons were, in 800 words or less.

Posted by: Melcher on August 15, 2002 07:44 PM

I think even 20 years seems to be stretching the "limited time" clause of the Constitution. 40+ years would make a mockery of the Constitution. But, as pointed out by others, Congress routinely makes a mockery of the Constitution (e.g., the popular prescription drug benefit for Medicare).

Posted by: Mark Bahner on November 5, 2002 09:29 AM
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