Re: Constitutional Challenge to (C) Code

On Mon, 30 Mar 1998, Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> On Sat, 28 Mar 1998, Bob Smith <cosmith[_at_]ash.palni.edu> wrote:
> >
> > What would be the likelyhood of success for a Constitutional Challenge
> > of the Duration of Copyright under both current and pending US Code?
> > It seems to me that life plus fifty-seventy years does not "promote the
> > progress of science and the useful arts by securing for limited time."
> > I do not understand how a lifetime beyond my lifetime is limited and how
> > it guarentees my right to my work when I am dead. Class action, anyone?
>
> The difficulty would be finding a defendant for the class action.
>
> I think you'd run into mootness problems if you just tried to sue to
> have the duration provision repealed. You'd have to bring it up as a
> defense in an actual infringement suit, or in a declaratory judgment.
> (What do you call what would ordinarily be called a "defense," when it's
> brought up by the plaintiff in a declaratory judgment suit, rather than
> by a defendant in an infringement suit?)
>
> On the substantive issue, at least the present duration term is
> mandated by Berne, so even if, arguendo, you assume that the limitation
> of life+50 is not a "limited time" as that term is understood by Article
> I, s.8, cl.8 in the Constitution, there is separate empowerment under
> the treaties clause. (Although the fact that the duration provision was
> amended 9 years before we entered Berne hampers this argument.)

I don't think it would be that hard to come up with a litigable case or controversy to test the constitutionality of the legislation. Hire an orchestra next year to perform Gershwin's "Rhapsody in Blue," which (I believe) is set to go into the public domain on January 1, 1999, if the term extension doesn't pass. When the orchestra is sued for copyright infringement, it can raise the constitutional argument as a defense.

Thomas F. Cotter
Associate Professor of Law
University of Florida College of Law
Gainesville, Florida 32611-7625
(352) 392-2235 (office)
(352) 392-3005 (fax)
cotter[_at_]law.ufl.edu Received on Tue Mar 31 1998 - 12:53:28 GMT