Twenty years ago today, we lost a battle in the fight against perpetual copyright. In about a year, we’ll know whether we won the war.
On January 15, 2003, the Supreme Court upheld the Sonny Bono Copyright Term Extension Act, Congress’s 11th extension of existing copyrights in 40 years. Though the Copyright Clause of the Constitution gives Congress the power to secure copyrights “for limited times,” the Supreme Court’s decision effectively allowed Congress to secure perpetual copyrights, if only on the installment plan. Congress was a child caught with 5 cookies, after being told they could take “just one”: “I did take ‘just one’ — five times in a row.” Most parents would laugh at that argument. The Supreme Court bought it.
I argued the case in the Supreme Court against perpetual copyright. Though most told me the cause was hopelessly naive— as a colleague said, “I think you’re right, but when has right ever beaten all the money in the world?”—I was proud to embrace my naivete. A clear majority of the Supreme Court had declared itself committed to principles of limited federal power; an emerging majority had committed itself to originalism. As Judge David Sentelle had argued in dissent in the Court of Appeals, allowing Congress to extend the term of existing copyrights defeated the original meaning of the Copyright Clause, and secured to…
