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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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May 24, 2005

DC Circuit Rejects Challenge to Congress Removing Works from the Public Domain

Posted by Ernest Miller

The US Court of Appeals for the D.C. Circuit has upheld a district court decision and rejected a challenge to § 514 of the Uruguay Round Agreements Act, which brought certain works that remained copyrighted overseas but had entered the public domain in the US back into copyright in the United States. The appellants had argued that it was unconstitutional for Congress to remove works from the public domain. Read the 9-page decision: Luck's Music Library v. Gonzalez [PDF]

The decision essentially relies on the Supreme Court's decision in Eldred, which rejected a constitutional challenge to a law that extended existing copyrights by twenty years:

It is true, of course, that changes in the law of copyright cannot affect the structure of incentives for works already created. But the knowledge that Congress may pass laws like the URAA in the future does affect the returns from investing time and effort in producing works. All else equal, the expected benefits of creating new works are greater if Congress can remedy the loss of copyright protection for works that have fallen accidentally into the public domain. The Eldred Court made a parallel point in rejecting plaintiffs’ quid pro quo theory, noting that any author of a work “in the last 170 years would reasonably comprehend, as the ‘this’ [i.e., quid] offered her, a copyright not only for the time in place when protection is gained, but also for any renewal or extension legislated during that time.”
I was never particularly persuaded by that element of the Eldred decision. Essentially, the Court is saying that the mere possibility that a future Congress might increase copyright protections and backdate them creates additional incentives to future copyright creators. "Gee, I would have written this novel (or financed this film, etc.) but I won't, because Congress will be unable to increase my copyright monopoly sometime in the indefinite future, if they choose to do so at all." Since when have people been expected to rely on what future Congresses might do?

Read the whole decision and rue Eldred once more.

via How Appealing

Comments (1) + TrackBacks (0) | Category: Copyright


1. Branko Collin on May 24, 2005 12:19 PM writes...

Doesn't this only work if congress guarantees to extend copyrights in the future, or at least guarantees to not shorten it? I thought congress had been granted the right to create copyright law, even for shorter terms, by the US constitution?

Also, if the promise of longer copyright terms provide an incentive to create or invent, then what are the consequences of the promise of shorter copyright terms?

To me this reads like the court says congress is not allowed to introduce shorter copyright terms. I did not know that the courts were allowed to override the constitution.

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