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 have the duration provision repealed.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.)

Another, probably fatal, problem would be justiciability. The Constitution clearly grants to Congress the authority to grant Copyright protection. The determination of what "limited term" would best "promote the progress of science and the useful arts" is purely a legislative function, and a court would (or at least should) refuse to substitute its legislative judgment for that of Congress.

The "mandated by Berne" argument would, I hope, be rejected. If a Congressional act is unconstitutional, it should not be saved because it is mandated by a treaty, which is limited by the same constitution. The Treaty Clause does not create any additional powers to Congress. For example, if the President signed, and the Senate ratified, a treaty mandating the creation of "separate but equal" school districts for immigrants and citizens, would that override the Brown v Board of Education holding that such districts are inherently unconsitutional?

Michael Echeverria
<mechever[_at_]alldata.com>

                    The dissent of course resorts to the last, best
                    hope of those who would defend ultra vires
                    congressional action, the Necessary and Proper
                    Clause.
                                        Printz v. Unites States
                                        Supreme Court of the United States
                                        June 26, 1997
                                        95-1478