The Walt Disney Corporation has received a wide range of benefits from American governments. None has been as important as the ever-increasing term of copyright. Beginning in 1962, Congress extended the term of existing copyrights eleven times, including the Sonny Bono Copyright Term Extension Act of 1998, which extended existing copyrights by 20 years.
I litigated the constitutional challenge to those term extensions. The Constitution gives Congress the power “to promote the Progress of Science” “by securing” “to Authors” an “exclusive Right to their” “Writings” “for limited Times.” The repeated extension of copyright terms, I argued, was inconsistent with “limited Times,” and the purpose of the clause, “to promote … Progress.” (The latter point Nobel Prize-winning Milton Friedman called a “no brainer” when joining a brief challenging the extension in the Supreme Court. )
In 2001, the DC Circuit upheld the extensions, Judge David Sentelle dissenting. Sentelle relied upon the then-ascending jurisprudence of Supreme Court conservatives eager to set the “outer limits” to the powers of Congress, by interpreting the text of the Constitution more strictly. In 2002, the Supreme Court affirmed the decision of the DC Circuit. None of the then-five conservatives on the Court explained just why they were declining Judge Sentelle’s invitation.
