Dark Day for the Public

The story is just now breaking that the Supreme Court has upheld the Sonny Bono Copyright Extension Act as constitutional in a 7-2 decision. I have only read part of the briefs, but had a couple of quick comments:

I expected this outcome, but I must admit I am still surprised that the Justices abandoned their responsibilty to act in the public interest as directed by the Constitution and hand what amounts to perpetual monopolies for intellectual property to publishers.

My brief skim of the majority opinion shows that the Court chose to focus on two issues, whether the Congress has the authority to extend the term of pre-existing copyrights, and whether such an extension represents a violation of the the First Amendment freedom of speech clause. The majority opinion held that the petitioners would like the “limited time” clause empowering Congress to establish copyrights means “inalterable”. I find this remark to be erroneous: the petitioners clearly argued (quite correctly in my opinion) that if Congress is able to continuously extend the term of copyrights, their powers are not limited. I think the SCOTUS has virtually handed infinite term copyrights to publishers by this action by allowing absolutely no end to the legislation that can extend their terms. The majority opinion goes on at great length to justify the retroactive nature of this application by historical precedent, which will require some additional headscratching before I can make sense of it all.

Overall the Court decided that the CTEA was within the power of Congress to enact, that the Justice department is not in the business of second guessing Congress as to policy.

The Court found as unpersuasive the argument that the CTEA represented an attempt to generate perpetual extensions. I find this rather remarkable, given the comments of Sonny Bono’s widow upholding the idea first voiced by Jack Valenti that they desired copyrights to be “forever minus one day”. They echoed
the earlier court finding that the CTEA was designed merely to bring US copyright law into parity with laws passed in the EU. I guess we will have to wait
another fifteen years or so to see if the Court was correct in their assessment.

The two dissenting opinions by Justices Breyer and Stevens are excellent in
their clarity and insight. It is a pity that more of the Justices could not see their duty to uphold the principles of the Constitution for the public benefit.

I’ll almost certainly rant more when I have more time to think about it.