Eldred v. Ashcroft, as decided by the Supreme Court in January 2003 affirmed the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998 (CTEA), which extended the copyright term by twenty years. This article focuses on one of Eldred's holdings, that there is no conflict between copyright law and the First Amendment. The Court reached the conclusion that there is no conflict between the two legal fields. It repeated the judicial sound byte of its 1985 case, Harper & Row v. The Nation, that "[t]he Framers intended copyright to be the engine of free expression." But Eldred also included novel and interesting elements that offer a new direction to the discourse of the conflict, or at least a potential for redirection.
Surprisingly, Eldred is the first facial constitutional challenge to copyright law in 213 years. As copyright law continues to expand in unpredictable ways it is crucial to study its contours. This is especially acute in light of the Court's comment that "…when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary."
This article challenges the constitutional dimension of the judicial rejection of the argument about a conflict between copyright law and the First Amendment. The critique is structured along the lines of an important distinction between two kinds of conflict: One is internal to copyright law and the other is external to it. The internal conflict is the familiar tension between the public and the individual author; between the goal of copyright of promoting the progress and the means applied to achieve it. The external conflict points to a collision between two separate constitutional areas of law: Congress's power to enact copyright legislation, and the First Amendment.
Courts routinely fail to distinguish between the two conflicts and address only one. Once the two kinds of conflict are observed, we can rephrase the conflict argument and its rejection. It aims at the external level. The typical judicial response keeps drawing us back to the internal level. The rejection of the conflict argument thus internalizes the discussion of the conflict. Eldred is no exception.
Date of this Version
Michael D. Birnhack, "COPYRIGHT LAW AND FREE SPEECH AFTER ELDRED V. ASHCROFT" (January 2008). Tel Aviv University Law Faculty Papers. Working Paper 56.