Public Domain Doomed

Jim Whitehead
Wed, 15 Jan 2003 14:17:52 -0800

The opinion text makes for interesting reading. According to the opinion:

There's long precedent for extending the duration of existing copyrights, so
I can see that this alone doesn't make CTEA unconstitutional.

The opinion puts pretty heavy weight on normalizing copyright terms with
those of the EU, to promote trade and ensure that US copyright holders have
the same terms in the EU as EU copyright holders. They also point back to
rationale from the 1976 extension, about increasing lifespans, and the
desire to have heirs benefit for the duration of the heir's life. They also
point out that durations of around 90-100 years exist in other areas, and
hence this time span is within the definitional reach of "limited".

Additionally, the opinion states that since people have full use of the
ideas in a text, the long copyright doesn't prevent the progress of science.

Some thoughts:

* In another 15 years or so, it'll be interesting to see how Disney &
company try to extend things again. This opinion suggests that cracking
Europe first, and then getting the US to "normalize" would be a good

* It seems that only another 1-2 extensions would make it past the implicit
criteria described in this opinion. If the time period is much greater than
other "limited" times in law (90-100 years), that starts looking fishy, and
if there is no "normalization" going on, then it's harder to argue that a
permanent copyright regime is not what's taking place.

* This decision might be expected to radicalize opponents to copyright, and
the CTEA, since people with more moderate views might be expected to either
agree with the court (and thus no longer be so opposed), or find that there
is less hope available in traditional channels (congress and the courts).

* There is nothing in the decision that limits Congress' ability to pass
legislation to reduce copyright terms.

- Jim