Congressional Power and Limitations Inherent in the Copyright Clause

After yesterday's Zittrain talk, I went today to a series of presentations on 'Constitutional Challenges to Copyright', put on by the Kernochan Center.

Chris Sprigman:

• the limitations that Congress placed on the copyright power are systematically underenforced, and we should do something about it.
• if we look at the copyright clause, we see immediately that the power is limited- for 'Limited Times'- this is an enumerated, limited power.
• In Eldred, Eldred argued that limited means fixed, so if Congress extends the time, that is no longer fixed. Court disagreed- basically held that limited means 'not perpetual'- life + a million would potentially be acceptable under the Eldred ruling. Court argued that the limited times requirement was a political choice.
• Chris says that there is a problem here; not necessarily with Court's reasoning, but with the outcome. 'Limited times' creates a federal public domain.
  
• First observation: constitutional text (limited times) is there because there is a constitutional value (public domain); if we just enforce the strict letter of the law we destroy the public domain, because we leave the public domain with nothing except useless husks- things that are abandoned. Current law leaves very little going into the public domain- 'our recent past is gone.'
• So a judicial stance that means 'not perpetual' is judicially excusable, given the text, and the difficulties in creating enforcement of that text. But in Congress, we won't get enforcement of the norm because of intense rent seeking by the copyright producers. Users don't have much stake in the game; not organized; so overwhelmed by organized/high-stakes copyright producers. Because of the collective action problem Congress will systematically over time underenforce, just like the courts are systematically underenforcing because of the language.
• So what can we do? We can't directly enforce limited times in the courts, per Eldred, but we could do indirect enforcement in a way that enforces the integrity of the public domain. In the 1976 act, Congress notes that after 2067 there are no state common law copyright laws.
• Notes that in Dastar the Court actually ruled in favor of public domain- Scalia, writing for the court, says that once something is in the public domain, trademark law cannot create perpetual burdens which are a 'mutant species of copyright law' which 'limits the public's federal right to copy and to use expired copyrights.' This is a statutory interpretation.
• So our tactic is to interpret statutes aggressively to protect the public domain.
  
• Hypo with DMCA: interpret the technological protection measures clause to be restrictive.
  
• Golan v. Gonzalez: involves a wide-scale retaking of goods from the public domain via the Uruguay Round. How can we use Golan to vindicate the otherwise underenforced limited times provision? Public domain as Roach Motel: things go in and don't go out.
  
• Kahle v. Gonzalez: removal of mandatory formalities case. Formalities were an engine for sending works into the public domain; preserving the integrity of the public domain calls for exacting judicial scrutiny in this case.

R. Anthony ('Tony') Reese:

• Is the public domain permanent? In what context?
• In Eldred, the court uses the text to read the Congressional power quite broadly and deferentially.
• Eldred is the most recent of six SCOTUS cases which interpret the clause- two (to do with trademark) are narrow-ish, but the rest are broad; Eldred is consistent with this.
  
• Eldred goes beyond the rest in an important way, though- the rest were on subject matter- what can be copyrighted. Eldred is about manner of regulation- what does Congress do and what are the constraints there?
• What might Eldred mean for future copyright legislation, particular with regards to the unpublished public domain? Used to be that common law protects the unpublished works perpetually; they are now (as of 1976) brought into federal copyright system and are given specific (long) limited times. Unpublished works by dead authors who died before 1936 are now in the public domain- so if you find an unpublished manuscript from such an author, you can't claim copyright on it. Clearly this will incent publishers to lobby for protection if they find such a manuscript, to call for a period of exclusivity. This is not hypothetical: the EU does this already, and as we know from the Bono Act, matching EU protections is a motivation for creating US law.
• So what would the court say about such a law? Possible challenges:
• (1) violates limited times: after Eldred this is probably not going anywhere.
  
• (2) Congress has no power to remove material from the public domain: nothing textually express in the clause. We might ask if this is consistent with 'promoting the progress'- Congress and Court could argue that publication is 'progress', and a limited grant could be seen to 'promote'. Historically, there are some examples which take acts out of the public domain, which have been upheld. But all of these have been for published works which fell prematurely into the public domain.
  
• (3) power not given to author, as Constitution requires: obviously a literal reading would not allow this, but there is a long history of giving copyright to non-authors- for most of history, the copyright was granted not at creation, but at publication, and often went to the publisher. Similarly, renewal term was in pre-1976 copyright was a 'new estate' which didn't necessarily go to the author if the author was dead.



• So, likely that under Eldred court would allow such legislation, even if it is a bad idea.
  


• The Eldred approach is very deferential and would allow creation of entirely new rights, like in the hypo.
• Historical approach in Eldred would seem to allow use even of not very clear/not analogous historical precedent.

Graeme Austin:

• Would like to see more analysis of the risk of additional litigation; clear that courts don't want to scrutinize copyright law for constitutionality, even though some litigators clearly want to.
• Case law has reinforced the judiciary's determination to be hands off.
• Wants to discuss the links noted by some courts between international copyright law and
  
• Skeptical of the quid pro quo
argument- sees quid pro quo as a reason for Congress to start looking at copyright, but not a restriction on the power of copyright.
• I completely lost his chain of argument, but he did make Mary-Beth Peters laugh out loud.
• Suggests that Eldred allows copyright to evolve, with reference both to technology and to the law of other nations- which would not have been in concert with the Framer's conception of copyright.

Questions:

• Sprigman notes that Eldred dismisses the first amendment/copyright tension by saying 'the Founders didn't see a tension', but notes that the Founders thought of copyright and free speech as each being very small- many of them supported the Alien and Sedition Act, and copyright at that point was books and maps only.
  
• Ginsburg notes that history shows us a lot about what is permissable, but not necessarily about what is required- long history of copyright formalities shows only that formalities are permissible, not that they are required.
• Peters and Ginsburg discuss sanely/skeptically the problems with phones, garage door openers, etc.- they think the current situation is problematic.
  
• Atty. for the software industry thinks that DMCA begins to create a use right, not just a copy right (which he sees as a positive thing); does the panel think that a use right might be constitutionally supported? Sprigman: this will run into Eldred's fair use constitutionalization. Peters thinks it would not be unconstitutional, but leaves the policy issue to the scholars. Text says 'exclusive right', but doesn't tell us what the limits of that 'exclusive right' is
• Reed-Elsevier lawyer: public domain is not in constitution nor in early copyright law. Are we creating a mountain out of a molehill? Sprigman: limited times. Reese: quite clear in operation of statute from 1790 on is that there is a limited term of protection, and that if you didn't, it was free for others to use. Clearly embodied in the action of the people who created the law originally. Ginsburg notes that the term didn't even get created for a 100 years, so unfair to criticize the founders for not using something they clearly would have agreed with. Another publisher's lawyer: this sounds more like a statute of limitations to me- just because there is a statute of limitations on porn, doesn't mean we're pro-porn. Sprigman: why did they put limited times? Why not just say unlimited power? Clearly they put it in for a reason- to encourage creation and then to usher those creative goods into the use of the public.
  
• Rebecca Tushnet: if constitution says 'exclusive right', where do we justify compulsory licenses? Sprigman: it is still an exclusive right, just a liability right. [Interesting discussion I lost the thread of.]